Incomplete Utilization Review Report is Untimely

Summary Written by Larry Fields

Most of us are aware that an untimely utilization review (UR) report is deemed defective such that the WCAB has jurisdiction to decide whether the requested treatment is necessary, thereby precluding Independent Medical Review (IMR).  But what about a timely UR report that is served on parties where there are missing pages or is otherwise incomplete in that regard?   Does the WCAB have jurisdiction to hear the issue or is it solely within the realm of IMR?

This situation came up recently in the case of Ingle v. Department of Motor Vehicles which was a Board Panel Decision at 2017 Cal. Wrk. Comp. P.D. Lexis 137.  In that case applicant sustained an accepted dental injury as was treating with a periodontist, Dr. Benarroch, who issued a Request for Authorization (RFA) of numerous dental procedures necessary to treat her injury.  Also, the parties stipulated that the RFA was timely submitted to UR and that the defendant’s UR reviewer issued a time decision which included some modifications and denials of the RFA.

That wasn’t the problem.  The problem was that the UR decision which consisted of 25 pages, while being timely served on applicant’s attorney was incomplete.  In other words, the attorney only received the first 20 pages of the 25 page decision.  In particular, what was missing in those last 5 pages was important information such as the name/qualifications of the UR reviewer, the list of medical records reviewed, and notification of the UR appeals process.  The attorney therefore argued that he did not have all of the information to which he was legally entitled pursuant to 8 Cal. Code Reg. §9792.9.1(e)(5).  He argued that this was an untimely denial.  As such, he argued failure to timely communicate all of the required information renders the UR decision untimely per Bodam v. San Bernardino County Department of Social Services (2014) 79 Cal. Comp. Cases 1519; and per Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298, the Appeals Board has jurisdiction to decide the treatment request where the UR decision is untimely.

The defendant argued that this was merely a “procedural defect” not rendering the UR decision untimely and that IMR was the proper remedy.  The Board panel rejected this argument because the fact that important information contained in the last 5 pages of the UR decision was missing there was a violation of §9792.9.1(e)(5) rendering the UR decision being untimely.

So, for those of you that do rely on the UR decision making process should make sure that when the decision is served on the applicant, the doctor, and applicant’s attorney that the complete decision is served.

One Date of Injury to Different Body Parts, Different MMI Dates:
Which MMI Date Controls?

Summary Written by Larry Fields

Applicant suffers a specific industrial injury that involves different body parts., e.g. back and knees, as a result of a slip and fall injury. The treating physician declares the back to be at MMI with a finding of permanent disability, but it is not until many weeks or months later that the knees reach MMI status. The carrier has been paying temporary disability benefits but decides that the same should be terminated when the back reached MMI status. Is this proper?

Labor Code §4061(a) indicates that together with the last payment of temporary disability the employer/carrier is to provide the appropriate permanent disability advice notice. It is assumed the employer/carrier satisfied this requirement and also sent out the appropriate notice regarding termination of temporary disability benefits.

But, what do we do about the alleged remaining period of potential temporary disability that relates to the knees. Does the first MMI date control?

This question was discussed in the recent WCAB panel decision of Foreman v. Target Corporation 2017 Cal. Wrk. Comp. P.D. Lexis 111. In this case, on July 11, 2006 applicant sustained a specific industrial injury to her lumbar spine and also alleged psyche and sleep disorder. Note that this date of injury pre-dated SB 863 enactment of Labor Code §4660.1(c)(1) precluding added impairment for psyche and sleep disorder if the same are related to a physical injury. Note also, however, there is nothing in that section that indicates any period of temporary disability related to psyche and sleep disorder caused by a physical injury is precluded.

Applicant's period of temporary disability did not begin until October 26, 2006. Ms. Foreman was being treated by an orthopedist for her lumbar spine who found her to be permanent and stationary/MMI on August 21, 2007. But, her treating psychiatrist indicated that she was not permanent and stationary/MMI until August 6, 2008. In fact, a psychiatric panel QME agreed with the treating psychiatrist as to her periods of temporary disability. The employer here argued that all liability for temporary terminated when her lumbar spine reached permanent and stationary/MMI status on August 21, 2007 and applicant contended that it should continue to August 6, 2008 when it reached that state due to her psychiatric condition.

The WCAB concluded that applicant was correct. It reasoned that there can only be one permanent and stationary/MMI date for an injury even if some body parts stabilize before others. As such, it is the permanent and stationary/MMI date on which the last body part reaches that stage. Here, payments for temporary disability should have continued through the date she reached permanent and stationary/MMI status. There is no mandate to send out the Labor Code §4061 permanent disability notice when applicant had reached permanent and stationary/MMI status regarding her lumbar spine.

Let us assume that instead of one specific injury, we have a specific injury and a continuous trauma injury, both to the same body parts. The period of temporary disability obviously would have run concurrently for both injuries, so applicant would not be able to collect double the money. And, once the last body part reaches permanent and stationary/MMI status, temporary disability for both injuries terminates.

We are all familiar with Labor Code §4656(c)(2) which caps temporary disability payments for injuries on/after January 1, 2008 to 104 weeks within a period of five years from the date of injury. What if in Ms. Foreman?s case her injury was in 2008 and not 2006? What if her psychiatric injury extended beyond the 104 week cap? It makes, no difference as there is no liability for temporary disability beyond the 104 weeks.

Read more: Which MMI Date Controls

Code of Civil Procedure §2034.430

Summary Written by Larry Fields

How many times have you received notice from applicant's attorney setting a deposition of an AME, QME, treating physician, or expert witness and when you appear for the deposition on time you learn that your opponent is running quite late? What relief do you have available?

Well, consider California Code of Civil Procedure (CCP) §2034.430. In subdivision (c) of that section it states as follows: "If any counsel representing the expert or nonnoticing party is late to the deposition, the expert's reasonable and customary hourly or daily fee for the time period determined from the time noticed in the deposition subpoena until counsel's late arrival, shall be paid by that tardy counsel."

Isn't this interesting? Generally, in workers' compensation cases the expert witness is not issued a witness subpoena for his or her deposition, but there is no reason why CCP §2034.430(c) cannot be utilized to recover extra witness fee charges incurred by the late opponent who set the deposition. This is because such charges are medical-legal in nature and also allowable as costs per Labor Code §5811 and there is no reason why the defense should have to pay extra charges due to the attorney's alleged"misconduct".

Read more: Code of Civil Procedure §2034.430

Unemployment Appeals Board Findings Limitations

Summary Written by Larry Fields

Are findings from an Unemployment Appeals Board admissible in a workers' compensation case? Consider the scenario that the worker is fired for cause, files for unemployment insurance benefits, is denied those benefits, and has an appeal hearing. The decision on appeal by the Board upholds the termination of employment as being for cause and denies benefits. Thereafter, the worker files a continuous trauma stress and strain case with the WCAB and the defendant carrier or employer denies the same based on the post termination provisions of Labor Code sections 3208.3 and 3600(a)(10). Additionally, it denies the psychiatric portion of the case utilizing the good faith personnel defense provision in section 3208.3(h).

Read more: Unemployment Appeals Board Findings Limitations

Refusal of Cross-Examination a Denial of Due Process

Summary Written by Gregory Tanner

In an unpublished decision, the Court of Appeal, Second Appellate Division, annulled a WCAB decision that found that an applicant was entitled to an award of total permanent disability despite refusing to testify on cross-examination at trial. The applicant refused to testify on cross-examination during three hearings. Despite this, the WCAB ultimately found that the applicant was entitled to an award of total permanent disability at the TD rate.

In annulling the opinion of the WCAB, the Court of Appeal noted that the defense was denied due process when it was refused the ability to cross-examine the applicant. The Court of Appeal emphasized that the denial of the opportunity to attack the credibility of the applicant at trial was prejudicial to the defense since a finding that the applicant lacked credibility could have resulted in a more favorable result for the defense. The Court of Appeal also noted that apportionment was not adequately addressed since there was no evidence that Dr. Curtis, the psychiatric treating doctor, ever reviewed the reports of the orthopedists in the case who found some apportionment. The Court also held that the defense is entitled to cross-examine Dr. Gilberg in psychiatry who had previously recused himself due to harassment from the applicant.

In essence, a party is denied due process when refused the opportunity to cross-examine a party at trial when that denial is prejudicial.

Ogden Entertainment Services v WCAB

Read more: Refusal of Cross-Examination a Denial of Due Process