Expedited Review of Requests for Treatment Revisited

Labor Code 4610(i)(1) normally requires a utilization review (UR) determination to be made within “five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.” But LC 4610(i)(3) requires an expedited review when the employee faces an “imminent and serious threat to his or her health, … or the normal timeframe for the decision-making process … would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function.” In those situations, the UR decision must be made in a timely fashion “not to exceed 72 hours after receipt of the information reasonably necessary to make the determination.”

California Code of Regulations 9792.9.1(c)(4) reiterates the requirements for an expedited review. It states, “Prospective or concurrent decisions to approve, modify, delay, or deny a request for authorization related to an expedited review shall be made in a timely fashion appropriate to the injured worker’s condition, not to exceed 72 hours after the receipt of the written information reasonably necessary to make the determination.” CCR 9792.9.1(c)(4) also states, “The requesting physician must certify in writing and document the need for an expedited review upon submission of the request. A request for expedited review that is not reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the timeframe for utilization review under subdivision (c)(3) would be detrimental to the injured worker’s condition, shall be reviewed by the claims administrator under the timeframe set forth in subdivision (c)(3).”

Previously, in Diaz v. Pacific Coast Framers Inc., 2023 Cal. Wrk. Comp. P.D. LEXIS 211, the WCAB held that a defendant’s UR determination was timely, and that the board did not have jurisdiction to determine the medical dispute when the applicant failed to establish that the treatment request was subject to expedited review. In that case, the WCAB reviewed the medical evidence and determined that none of the reports from the requesting physician constituted evidence that the applicant’s condition was an imminent and serious threat to his health that would warrant the 72-hour expedited review delineated in CCR 9792.9.1(c)(4). This case was previously discussed in an article published on Oct. 17, 2023, titled Expedited Review of Requests for Treatment.

Now we must revisit the issue, because the WCAB has reversed course in a more recent decision, Correa v. Display Products Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 198. In that case, on Feb. 16, 2024, the treating physician submitted a request for authorization (RFA) for “care giver assistance” 12 hours per day, seven days per week, for a period of six months, along with medical transportation. The RFA was marked for expedited review, indicating that the “employee faces an imminent and serious threat to his or her health.” On Feb. 21, 2024, the defendant issued its UR determination that the requested treatment was noncertified.

The WCAB upheld the WCJ’s determination that the UR determination was untimely. It explained:

Pursuant to Rule 9792.9.1(c)(4), an RFA marked for expedited review involves two determinations, both of which are medical in nature. The reviewer must make an initial determination as to whether the request is reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to their health, or that the timeframe for non-expedited review would be detrimental to the injured worker’s condition. Thereafter, the reviewer must determine whether the requested medical treatment is reasonably medically necessary, as supported by evidence-based medicine and applicable treatment guidelines. Both determinations involve an evaluation of medical issues, including the severity of the condition or diagnosis, the likelihood of imminent and serious threat to the applicant’s health, factors mitigating or exacerbating the condition, and the interplay between evidence-based medicine, treatment guidelines, and the requested medical treatment modalities. Given the medical determinations inherent in evaluating both the urgency of the RFA as well as the requested treatment, we agree with the WCJ that the determination should be made by a medical professional, rather than a claims professional.

The WCAB didn’t expressly disagree with Diaz, noting that in that case, there was a UR determination prepared by a physician that specifically addressed the issue of whether the RFA established an imminent and serious threat to the applicant’s health. It found that in the present case, however, there was no evidence that a medical professional reviewed the request for expedited review, or that any action was taken within the required 72-hour period for expedited review pursuant to CCR 9792.9.1(c)(4). So, it concluded that the UR decision was untimely, and upheld the WCJ’s determination that home caregiver services were medically reasonable and necessary.

Again, the WCAB didn’t expressly reject Diaz, but it took an entirely different approach to the analysis of whether an expedited review was required under CCR 9792.9.1(c)(4). In Diaz, the WCAB reviewed the medical evidence submitted with the RFA and determined that it did not establish the necessity of an expedited review. But in Correa, the WCAB determined that whether expedited review was necessary was a medical issue that must be addressed by a physician, and that a defendant must submit the determination to a UR physician within 72 hours for expedited review pursuant to CCR 9792.9.1(c)(4).

As panel decisions, neither Diaz nor Correa is binding on WCJs or appeals board panels. The WCAB, however, has been trending toward deferring issues to physicians when appropriate. For example, last month’s article, Understanding Accumulation of Permanent Disability Under LC 4664(c)(1), discussed the case of Stranak v. City of Los Angeles, 2024 Cal. Wrk. Comp. P.D. LEXIS 179, in which the WCAB held that the issue of assignment of a disability to a body system under LC 4664(c)(1) is a medical issue. Correa probably represents the WCAB’s position moving forward.

So, when a defendant receives an RFA marked for expedited review, it cannot conduct the utilization review using the normal time frames for a decision, then hope to litigate whether the request for expedited review is reasonably supported by evidence. Instead, it must send the RFA to a UR physician immediately, and no later than 72 hours after receipt of the RFA. If the matter proceeds to trial, a defendant must be prepared to present evidence that the RFA was sent to a UR physician within the 72-hour period under CCR 9792.9.1(c)(4). Then, if the UR physician does not complete the UR determination within the 72 hours, the physician must state that the request for expedited review was not supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the time frame for a regular review would be detrimental to the worker’s condition. Otherwise, the WCAB may find the UR determination to be untimely and exercise jurisdiction to decide the medical necessity of the requested treatment.