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The phrase “What we’ve got here is failure to communicate” is a quotation from the 1967 Paul Newman film Cool Hand Luke. The WCAB said nearly the same phrase in the new significant panel decision of Bodam v San Bernardino County Department of Social Services as it invalidated the employer’s UR decision. This famous film line should serve as a constant reminder about the implications of failing to follow the last steps of the UR process.

Timothy Bodam sustained industrial injury to his lower back on March 24, 2011 while employed by San Bernardino County Department of Social Services. His primary treating physician, Edward G. Stokes, M.D., referred applicant for a surgical consultation to Dr. Cheng of Loma Linda University Medical Center. On October 28, 2013, Dr. Cheng faxed an RFA to defendant’s adjuster State Compensation Insurance Fund (SCIF), requesting authorization to perform three-level fusion surgery at L3-S1.

SCIF referred the RFA to its UR agent Forté on October 28, 2013. On October 31, 2013, Forté made its UR decision to deny the treatment request based upon a report prepared by California-licensed and Board certified orthopedic surgeon David C Bachman, M.D., who reviewed the RFA and determined the surgery was not medically supported.

On November 5, 2013, defendant mailed written denial letters to applicant and to Dr. Cheng with copies to applicant’s attorney. There is no evidence that the October 31, 2013 UR decision was communicated to Dr. Cheng by fax, phone, or email within 24 hours after the UR decision was made. There is also no evidence that written notice of the October 31, 2013 UR decision was provided to applicant, Dr. Cheng, or applicant’s attorney within two business days after the UR decision was made.

The WCJ found after an expedited hearing that the Workers’ Compensation Appeals Board (WCAB) “has jurisdiction to adjudicate treatment when utilization review [UR] is untimely” and that defendant’s UR of the Request for Authorization (RFA) to perform spinal surgery submitted by one of applicant’s physicians, Wayne Cheng, M.D., was “untimely,” and lacked a necessary signature. The WCJ further found that the record did not have substantial evidence to allow proper determination of the treatment request, and for that reason ordered the record “reopened” for development by submission of a supplemental report from Dr. Cheng concerning the proposed surgery.

The WCAB in what it classified as a “Significant Panel Decision” held that “the WCJ correctly determined that defendant’s UR decision was not timely communicated and therefore invalid. Further, the WCJ properly ordered further development of the record by directing the parties to obtain a supplemental report from Dr. Cheng.” Accordingly removal was denied in the case of Bodam v San Bernardino County Department of Social Services.

After considering the provisions of Labor Code section 4610(g)(1) and (g)(3)(A) and AD Rule 9792.9.1(e)(3) the WCAB held that:

(1) A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision;
(2) A UR decision that is timely made but is not timely communicated is untimely;
(3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

Section 4610 provides time limits within which a UR decision must be made as well as when it must be communicated and the manner of transmittal. These time limits are mandatory. In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Dubon II), the Appeals Board held that the WCAB has jurisdiction to determine whether a UR decision is timely. If found untimely, the UR decision is invalid. Under those circumstances, the WCAB may decide the issue of the medical necessity of the requested treatment based on substantial medical evidence. The employee bears the burden of proving that the treatment is reasonably required. (Cf. State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981] (Sandhagen).)

In the present case, the RFA was received on October 28, 2013 and the UR decision was timely made three days later on October 31, 2013. However, a UR decision not only must be timely made; it must be timely communicated. A UR decision that is not timely communicated is of no use and defeats the legislative intent of a UR “process that balances the interests of speed and accuracy, emphasizing the quick resolution of treatment requests….”(Sandhagen, supra, 44 Cal.4th at p. 241.). Thus, section 4610(g)(3)(A) imposes further mandatory time requirements for communicating a UR decision. These time limits run from the date the UR decision is made, even if the UR decision is made in less than the five days allowed under section 4610(g)(1).