Shalisa Chamberlain was employed as a veterinary technician by Humphrey and Giacopuzzi Veterinary Hospital when she sustained injury to her low back, soft tissue, neck, buttocks, right hip, and feet due to weight gain.  She further alleged to have sustained injury to her psyche, vision, balance, urology, weight gain, brain, and internal organs.

Applicant’s PTP, Dr. Moelleken, issued a report on March 5, 2013 (signed March 16, 2013) and requested authorization for the following: (I) One year extension of gym membership; (2) Follow-ups with a psychiatrist; (3) Pain management follow-ups with Dr. Kenly; (4) Urology consultation to evaluate urinary retention and incontinence; (5) Neurology consultation to address headaches; (6) Follow-up in four weeks (not addressed in the WCJ’s Findings and Award); (7) 16 hours of home health assistance every week; and 8. Eight visits of additional chiropractic treatment for neck and back.

After receiving Dr. Moelleken’s report, State Fund submitted the following issues to UR: (I) the prospective request for a one-year gym membership extension; (2) the prospective request for “unknown home health assistant for 16 hours per week for unknown number of weeks”; and (3) the prospective request for eight sessions of chiropractic manipulation. State Fund did not request a UR with respect to the other treatment recommendations by Dr. Moelleken. The April 2, 2013 UR determination did not certify the request for gym membership, 16 hours of home health assistance per week, and eight sessions of chiropractic treatment.

The WCJ found that applicant sustained industrial injury “to her low back, soft tissue, neck, buttocks, right hip, and feet due to weight gain; and claims lo have sustained injury to her psyche, vision, balance, urology, weight gain, brain, and internal organs.” Thus there was no finding of injury to the disputed body parts. The WCJ also found that defendant’s utilization review (UR) determination was untimely and concluded that applicant was entitled to the following medical treatment: (a) a one-year gym membership extension; (b) a follow-up with a psychologist; (c) a follow-up with a psychiatrist; (d) pain management follow-ups with Dr. Kenly; (e) a urology consultation; (f) a neurology consultation; (g) 16 hours of home health assistance every week; and (h) eight visits of additional chiropractic treatment for the neck and back.

In its petition for reconsideration, State Fund contends: (I) its UR determination was timely and, therefore, the WCJ’s Order of medical treatment that was denied through UR was improper; and (2) the WCJ’s Order of medical treatment for body parts that have not been determined as industrial was also improper. The WCAB reversed in part in the panel decision of Chamberlain v Humphrey and Giacopuzzi.

Labor Code section 4610 provides that prospective or concurrent UR decisions “shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from receipt of the information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.” Although section 4610(g)(l) states that these time limits run “from the date of the medical treatment recommendation,” Administrative Director Rule 9792.9(b)(2) clarifies the 14 days run “from the claims administrator’s receipt” of the treatment recommendation. (Cal. Code Regs., tit. 8, § 9792.9(b)(2).) Dr. Moelleken’s report is dated March 5, 2013, but signed March 16, 2013. State Fund received it on March 22, 2013. The UR denial itself memorializes the efforts State Fund made to obtain additional information about the treatment request from Dr. Moelleken. The UR company faxed Dr. Moelleken on March 27, 2013 and March 29, 2013, requesting additional information regarding the chiropractic treatment request; however, this additional information was never received.

Where a treating physician fails to respond to requests for additional information, the WCAB concluded that a defendant’s UR denial is timely if it is issued within five days of the last request for additional information (provided, of course, the 14-day absolute limit is met). State Fund’s April 2, 2013 UR denial issued 12 days after it received Dr. Moelleken’s report, within the 14 day time limit for receipt of additional information to make a determination of the treatment recommendation. Therefore, the UR denial issued “in no event more than 14 days” from receipt of the report, and the denial was therefore timely as to the industrially-related treatment addressed by State Fund’s UR denial.

The additional information requested by State Fund related only to the 4 chiropractic treatment. However the WCAB concluded that State Fund was not required to issue separate partial denials with respect to the gym membership and the home health assistance within five days of its 6 March 22, 2013 receipt of Dr. Moelleken’s report. Neither section 4610 nor AD Rule 9792.9 (as it read in early 2013) requires separate partial denials. To “read any such requirement into section 4610 or Rule 9792.9 because to do so would create a procedural morass, not only for defendants issuing UR determinations, but also for injured employees who now face a statutory deadline for requesting Independent Medical Review (!MR) with respect to any UR determination.”

UR determinations for non-industrial body parts are not relevant, since non-industrial treatment recommendations are not subject to UR. (Simmons v. State of California, Dept. of Mental Health (2005) 70 Cal.Comp.Cases 866 (Appeals Board en banc).) The dispute over authorization of these treatment requests are, therefore, returned to the trial level for further development of the record and determination whether the disputed body parts are industrially-related.