A recent panel decision issued and although short in length the decision touched on multiple issues that continue to be disputed by California Workers’ Compensation participants. McCool v. Arrowood Indemnity Company issued November 7, 2014 granting defendant’s Petition for Reconsideration over a judge’s Award of ongoing medical prescriptions. Applicant, Kim McCool, was being administered medical care under a future medical care award. The care, provided by Mark Sontag, M.D., consisted of medications to include narcotics. Defendant submitted Dr. Sontag’s request for authorization of prescription medications to Utilization Review (UR), who denied their ongoing use. Applicant has been a long term narcotic user and although the UR reviewer quoted MTUS language indicating a weaning of the medication would be appropriate, denied the request for authorization. Defendant initially denied the treatment based on the UR decision, but eventually reversed its determination authorizing the prescriptions. Applicant sought an Order by a WCALJ through expedited hearing to confirm continuation of her medical treatment. Even though the requested prescriptions were being authorized by defendant without dispute, the WCALJ issued an Award confirming access to the medications and ordered defendant to continue providing them until they were no longer necessary.
Defendant requested reconsideration and the WCAB panel reversed the WCALJ decision. The Petition for Reconsideration was granted based on the lack of any actual dispute at the time of expedited hearing. The decision, however, provided comments important to multiple issues addressed in disputes today:
- In its decision the WCAB panel stated, “Prescriptions by their very nature are limited in terms of frequency and time.”
The decision confirms that a prescription is limited to a number of doses and each new prescription requires a new request for authorization that can either be authorized or must be submitted to UR. Authorization of one prescription, however, does not indicate a continuous obligation to do so. Labor Code section 4610 allows for the submission of any treatment recommendation by a physician to UR for review and would require it for any treatment not authorized outright (treatment that is subject to modification, delay or denial).
For treatment that is authorized outside of a request for authorization by a physician, the lines may be blurred a bit. In Patterson v. California Ins. Guarantee Association/The Oaks Farm, the WCAB found authorization by defendant of a nurse case manager (NCM) shifted the burden to defendant to show that once authorized, a further denial of that care would have to be based on substantial medical evidence. The McCool decision signals a distinction that when treatment is limited by its very nature the burden remains with applicant to show medical necessity for ongoing care.
- The McCool decision appears to limit application of Patterson to authorization of care that is continuous.
Patterson v. The Oaks Farm was noted as a significant panel decision that issued July 2014. In Patterson, the WCAB held that medical treatment is not limited to requests for authorization by physicians. Unilateral authorization of a NCM represented medical care reasonably required to cure or relieve the effects of injury pursuant to Labor Code section 4600. When the NCM failed to produce results, defendant denied ongoing authorization indicating the failure was due to applicant being “difficult.” The WCAB held that applicant being difficult was not substantial evidence to discontinue the use of a NCM as not medically necessary ordering continued access to the NCM.
The McCool decision appears to distinguish treatment that is limited in duration from that which is open ended. As all prescriptions have definite periods, the authorization is limited to that period. Although the McCool decision was acknowledged only for prescriptions, defendant should be able to extend the principal to any treatment that is limited in nature. Unilateral authorization of treatment that is for a definite period of time should be able to be terminated once the period of time elapses without shifting the burden to defendant to show a change in circumstances.
On occasion, it may appear viable to authorize reasonable care to expedite resolution of an issue or for potential cost containment, even though the care may remain in dispute. Whenever authorized in this fashion, it is recommended to assert the authorization pursuant to Labor Code section 4909 (allows for provision of benefits without an admission of liability). Following McCool, it is also recommended to place a limitation on any unilateral authorization of treatment that is provided outside of a treatment recommendation by a physician. Of course, any treatment recommendation by a physician must be submitted to UR if medical necessity is questioned.
- Utilization review is the appropriate method for determining whether medical treatment requests are appropriate.
The WCAB in McCool, noted that unlike in Patterson, defendant did not unilaterally terminate medications on their own initiative, but rather submitted the request for authorization to UR as required by Labor Code section 4610. The initial denial of care was based on the UR determination. This would be the correct procedure for determining the appropriateness of any medical care requested. Anything less will be subject to review by the Administrative Director. Modification, delay or denial of medical treatment recommended by a physician for reasons of medical necessity cannot be made by anybody other than a licensed physician (Labor Code §4610(e).)
- A court must have a current ongoing dispute in order to Award medical treatment.
Although UR denied the medical treatment requested in McCool, the claims examiner had authorized the treatment over the UR denial based on inconsistencies with MTUS prior to the matter proceeding to expedited hearing. Since the treatment had been authorized, the dispute was resolved and there was no controversy for the court to address. Although applicant wanted to proceed with the matter over a fear that her medications would be cut off in the future, the WCAB confirmed the court does not have jurisdiction to issue advisory opinions or decisions over issues that may never arise.
- Defendant retains responsibility over policies and procedures resulting in inappropriate UR decisions.
While the WCAB granted defendant’s Petition for Reconsideration, it also noted that the UR decision in the case appeared internally inconsistent. The WCAB issued an advisement that where defendant’s practices result in acceptance of internally inconsistent UR decisions, the matter may be subject to review by the Administrative Director “to review the policies and procedures and to potentially assess penalties for abuse of the UR process.”
Although the only issue the court is supposed to address on an UR decision subsequent to Dubon II is the timeliness of the decision (and substance where timeframes are violated), the WCAB is advising all defendants that the entire UR process could come under review by the Administrative Director for decisions made that are internally inconsistent with MTUS and the process of providing appropriate medical care for injured workers. Thus, claims examiners should be cognizant of this potential and maintain scrutiny over decisions based on UR opinions that appear inconsistent on their face with MTUS. An override of the UR decision by the claims examiner in the McCool matter may have saved significant inquiry and potential AD penalties.