Kathleen McKinney injured her neck and other body parts in 2014 while working as a driver for Enterprise Rent a Car. She filed four separate Petitions for Penalties and Sanctions under Labor Code sections 5813 and 5814. The gravamen of applicant’s theory is that when the RFAs were submitted, defendant had in its possession and control medical reports and records germane to each of the four RFAs and failed to provide the same to WellComp, its UR organization for consideration, causing the RFAs to be denied.

The defendant filed an Answer to each of the four Petitions for Penalties and Sanctions. In answer to Petition for Penalties and Sanctions # 1, defendant asserts that the RFA for Diclofenac ER 100 mg #60 was timely denied by Utilization Review (UR). In answer to Petition #2, defendant asserts that the RFA for two boxes of Salonpas was timely denied by UR;  and in answer to Petition #3, defendant contends that the RFA for trigger point injections was timely denied by UR;  and in answer to Petition #4, defendant also asserts that the RFA for Soma 350 mg. #60 was timely denied by UR. With respect to all four Petitions, it claimed that the WCAB lacks jurisdiction over applicant’s claim for penalties and sanctions.

Each of the four UR determinations identify the documentation reviewed by the physician. In each instance, the documentation reviewed was limited to the actual RFA and the treating physician’s contemporaneous progress report. There is no indication that additional records or documents, including the January 8, 2015 MRI results, were provided to the evaluating doctor.

The MRI findings that were not reviewed by UR note “chronic discogenic endplate changes at several levels,” and go on to describe central and neural forarninal narrowing at several levels, as well as “concentric uncovertebral hypertrophy (3 mm) with a superimposed left paracentral disc protrusion” at C4-C5.

The reason given for the non-certification was “[r]equest does not adequately document myofascial pain syndrome.” However the PTP progress reports dated June 4, 2015; June 25, 2015; and July 23, 2015 state that applicant has myofascial pain syndrome.

The WCJ found that defendant acted with bad faith in its handling of four separate Requests for Authorization of Treatment’ (RFA), making it liable for the imposition of sanctions under the provisions of Labor Code2 section 5813. The WCAB disagreed and reversed the sanctions in the panel decision of McKinney v Enterprise Rent a Car.

The significant issues in this case is jurisdiction of the WCAB to award penalties and sanctions despite the fact that UR was timely. In this regard the defendant argued that any dispute over the medical necessity of a particular treatment modality is within the exclusive purview of Independent Medical Review (IMR).

On the issue of jurisdiction, the WCAB disagreed with the defendant and ruled that Labor Code 5813 specifically authorizes the Appeals Board or a WCJ to order a party, a party’s attorney, or both, to pay any reasonable expenses incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Similarly, if the employer or its insurance carrier unreasonably delay or refuse to pay compensation and/or provide reasonable and necessary medical treatment to the industrially injured worker, section 5814 authorizes an increase in the delayed compensation payment up to prescribed monetary amounts.

The WCJ determined that defendant’s conduct in handling the four RFAs resulted from its willful failure to comply with its obligations under Administrative Director Rule 10109 because it had access to all of applicant’s medical records and diagnostic testing results but did not take the initiative to insure that complete records were provided to the UR doctor.

On this issue the WCAB panel disagreed with the WCJ. It noted that Administrative Director Rules 9785(g) and 9792.6.1(1)(2) require the RFA to include documentation substantiating the need for the requested treatment. The primary treating physician, and not a claims adjustor, is the one who knows what medical records substantiate the requested treatment. The four RFAs submitted by the PTP did include documentation, and presumably, the records and reports the PTP included with each RFA were those, in her expert medical opinion, that supported the recommended treatment.

Therefore, the WCAB cannot say that under these circumstances, defendant’s failure to take the initiative and submit applicant’s complete medical record to the UR doctor was a willful failure to comply with its regulatory and statutory obligations, or an indication of a bad faith tactic that is frivolous or solely intended to cause delay.

BUT the WCAB did not reach the issue of a defendant’s duty in ensuring that there is a complete record review by the UR doctor since, in this case, it was not shown that defendant abrogated its duty in bad faith or by frivolous action solely intended to cause unnecessary delay.