Kimberly Rivera injured her back while working for Valley Radiology in 2010. Dr. Norman Kahan is the primary treating physician.
On June 13, 2013, Dr. Kahan issued a request for authorization (RFA) requesting acupuncture and medications (Flexeril, Norco, Neurontin, Terocin and a Theramine medical supplement). The parties dispute the date that defendant received the RFA. Applicant claims July 5, 2013 and defendant claims July 8, 2013. The UR non-certification is dated on 07/16/2013, yet it indicates a determination date of 07/15/2013, and has a proof of service date of 07/15/2013. Thus the WCJ characterized it as “internally inconsistent.”
The parties attended an expedited hearing and submitted the medical treatment issue framed by the UR dispute for determination. The WCJ determined that UR was untimely, and therefore the underlying medical treatment issue was not subject to Independent Medical Review (!MR). Defendant disputes the determination that UR was untimely and Petitioned for Reconsideration which was denied in the panel decision of Rivera v Valley Radiology.
Pursuant to 8 CCR Section 9792.9(a)(J) the RFA shall be deemed to have been received by Defendant by facsimile on the date the request was received if the receiving facsimile electronically date stamps the transmission. If there is no electronically stamped date recorded, then the date the request was transmitted is deemed the date upon which the RFA was received. Here, Defendant offered no evidence of what the receiving facsimile recorded or when. As such, the Regulations are clear that the received date is deemed to be 07/05/2013. Based on the Regulations as applied to the evidence offered, the UR determination was due by 07/12/2013. The UR letter is dated 07/16/2013 and an internally inconsistent proof of service dated 07/15/2013. The WCJ reasoned that “Utilizing either the 07/15/2013 date or the 07/16/2013 date really makes no difference as the UR determination was due by 07/12/2013 and therefore in either case Defendant’s UR is untimely.”
On Reconsideration Defendant claimed for the first time that it has an additional 24 hours pursuant to Section 4610(g)(l)(A) in which to communicate the decision, and therefore the 07/15/2013 determination was timely communicated on 07/16/2013. This argument was not raised at trial. The WCAB panel noted that the parties dispute the date that defendant received the RFA. “However, based on our review of the record, even assuming that defendant received the RFA on July 8, 2013, we find the UR untimely.”
Labor Code Section 4610 (3)(A) provides that “Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director.”
Similarly, Administrative Director Rule 9792.9.1 states that: “For prospective, concurrent, or expedited review, a decision to modify, delay, or deny shall be communicated to the requesting physician within 24 hours of the decision, and shall be communicated to the requesting physician initially by telephone, facsimile, or electronic mail. The communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and if the injured worker is represented by counsel, the injured worker’s attorney within 24 hours of the decision for concurrent review and within two (2) business days for prospective review and for expedited review within 72 hours of receipt of the request.”
The WCAB panel thus concluded “There is no evidence in this case that defendant communicated their decision “initially by telephone, facsimile, or electronic mail” before it served written notice on July 15, 2013. Therefore, we find defendant’s UR untimely. Accordingly, for the reasons stated herein, we affirm the September 26, 2013 Findings and Award.”