A recently issued WCAB panel decision has caused waves of panic, concern and disbelief through the offices and hallways of my law firm. At its most basic level, Czech v. Bank of America, 2016 Cal Wrk. Comp. P.D. Lexis, supports the legal premise that service of a Request for Authorization form on a defense attorney (as the claims administrator’s agent) is sufficient to trigger the Utilization Review process and timeframes.
Based on that interpretation of law and ruling on the Czech case, there appears to be a heightened duty on the part of defense counsel to immediately review and convey RFA forms to the claims administrator. Additionally, by ruling that service of an RFA on defense counsel is sufficient to trigger the timeframes for UR, another link is added to the “review process chain” that already imposes a tight timeframe for review. There has been discussion and writings by defense counsel over the obligation this imposes on defense counsel and the challenge to timely review RFA’s due to the defense attorney’s delay in transmitting the RFA to the claims administrator or UR organization.
The interpretation above may be a strict one and likely not the intended effect that WCAB Commissioners had in mind when they issued the decision. A reading of the case facts is necessary to understand the motivation of the commissioners to issue a decision which arguably imposes an additional duty on defense counsel and additional “hoop” to jump through in the UR process.
In Czech, the applicant claimed that the defendant failed to timely respond to an RFA issued by the PTP. On February 3, 2016, the applicant filed a Declaration of Readiness to Proceed to Expedited Hearing on the treatment issue. The defendant objected to the DOR taking the position that it was never served with the RFA.
On March 1, 2016, and presumably after learning the defense position on failure to serve the PTP report and RFA, the applicant served a copy of the PTP report and RFA on defense counsel.
However, by time of the March 9, 2016 Expedited Hearing, the defense attorney had not communicated the PTP report and RFA to the claims administrator. As a result there was no review or action on the RFA. The WCJ awarded the requested treatment. Specifically, the WCJ ruled that service on the defense attorney was service on the claims administrator.
In its Petition for Reconsideration, the defendant pointed out the Labor Code §4610 and 8 CCR §9792.6.1(a) require that the UR process is only triggered upon receipt of the RFA by the claims administrator or its utilization review organization.
However, while the WCAB commissioners recognized the authorities cited by the defense, it also considered that all defendants have a continuing affirmative duty to conduct a good faith investigation of the claim and provide benefits when due. (8 CCR §10109). Labor Code §4600 requires more than a passive willingness on the part of an employer to respond to an employee’s demand for medical care. Some degree of active effort to bring the injured employee the necessary care and relief is required of the employer.
In the Czech case, the WCAB felt that the defense attorney had a duty to transmit the RFA to the claims administrator in a responsible amount of time in a good faith effort to resolve the dispute. The court pointed out that the defense was aware that the central issue of the case was delivery of medical treatment. In its objection to DOR, the defense acknowledged that a request for care was issued by the PTP but that the defendant did not receive it. Once the defense attorney received the RFA, he/she should have conveyed the RFA to the administrator for consideration and initiation of the UR process.
It is doubtful that the case supports the strict notion that the UR timeframes will be triggered any time a RFA is served on defense counsel and not on the claims administrator. This case involved a very special set of circumstances. At best the case can be read to stand for the proposition that a defendant cannot sit idly by and allow an employee to go without benefits when a diligent effort to investigate and act would avoid a delay in benefits.
Nevertheless, this case is a vehicle for applicants’ attorneys’ to argue that service on the defense attorney is sufficient to trigger the UR timelines. Accordingly, the truly diligent practitioner will make effort to operate reasonably, with common sense, in good faith and in an effort to deliver benefits where they otherwise appear due.