The claimant suffered an injury while employed by the University of California. The employer in the case was represented by Amanda Manukian Esq., a partner with Floyd, Skeren & Kelly, LLP.

The injured worker’s primary treating physician, Simon Lavi, D.O., submitted a request for authorization for medical treatment to the employer on January 20, 2016.

Pursuant to Labor Code section 4610(g)(l) and Administrative Director Rule 9792.9.1(c)(3) defendant had five business days to issue a decision to approve, modify, delay or deny the request.

Five business days later, on January 27, 2016, defendant’s UR provider issued a timely denial. At trial the defendant presented a fax transmission form showing that the UR denial was faxed to Dr. Lavi on the date of the decision. Additionally, in a report authored the very next day after the UR denial, Dr. Lavi confirms receipt of the UR denial. Thus, the UR denial was communicated to Dr. Lavi within 24 hours of the determination.

But applicant argued that the UR provider did not provide a proof of service as purportedly required by WCAB Rule 10505(f) (Cal. Code Regs., tit. 8, § 10505) and for that reason the UR denial was not timely and as a result the WCAB had jurisdiction to determine the medical necessity of the requested treatment.

The WCJ’s Findings of Fact of April 20, 2016, found that defendant timely completed utilization review (UR) of a January 20, 2016 request for authorization for medical treatment submitted by applicant’s treating physician. As a consequence of the finding that the UR denial was timely, the WCAB has no jurisdiction to determine the issue of whether the requested treatment was reasonably necessary, and any appeal of the utilization review decision must be determined by the independent medical review process outlined in Labor Code section 4610.5 et seq.

The WCAB denied reconsideration in the panel decision of Tabas v Regents of the University of California.

Applicant argued that the UR provider did not provide a proof of service as purportedly required by WCAB Rule 10505(f) (Cal. Code Regs., tit. 8, § 10505), But the WCAB concluded that Rule 10505 is part of the Workers’ Compensation Appeals Board Rules of Practice and Procedure, and applies to proceedings before the WCAB, not to UR proceedings.

“In any case, although the best practice is to include a proof of service, a proof of service is not the exclusive means for proving that a utilization review document has been timely served. In this case, the fax transmission sheet and Dr. Lavi’s confirmation, both of which were unrebutted, constitute ample evidence that utilization review timelines were met in the instant case.”

“Accordingly, we will deny the applicant’s Petition.”