The Bodam Case: What Constitutes ‘Timeliness,’ According to the WCAB?

| | Utilization Review

Bodam Case
In our recent article about the Dubon case, we were relieved that the Workers’ Compensation Appeals Board (WCAB) reconsidered the case. The WCAB ruled that it would only step in to make decisions on medical treatment when utilization review (UR) is defective because it is deemed untimely. All other instances of defective UR would move to Independent Medical Review (IMR).

Now, we have a case that shows exactly what happens when UR is deemed untimely: Timothy Bodam v. the San Bernardino County Dept. of Social Services.

When UR Is Ruled Untimely, the WCAB Takes the Reins

In the Bodam case, an employee of the San Bernardino County Department of Social Services, Timothy Bodam, suffered a back injury while on the job. After orthopedic surgeon Wayne K. Cheng examined Bodam, he decided that Bodam would require surgery. Dr. Cheng faxed his request for authorization to the county’s adjuster on Monday Oct. 28, 2013. The adjuster, forwarded the request to UR the same day.

On Thursday Oct. 31, 2013, the UR reviewer decided to deny the request. The State Compensation Insurance Fund (SCIF) mailed written denial letters to Dr. Cheng, Bodam, and Bodam’s attorney on Tuesday Nov. 5, 2013 — three business days after the decision to deny treatment was made.

In one sense, the UR decision was timely made: Labor Code Section 4610 requires a payer to make a UR decision on a request for prospective treatment within five business days from when the reviewer receives the request for authorization. In this case, the UR reviewer did make the denial decision within the five business day deadline. However, the UR decision was ultimately untimely. Labor Code Section 4610(g)(3)(A) imposes further mandatory time requirements for communicating a UR decision. This obligates the UR agency or payer to communicate the UR decision to the requesting doctor within 24 hours of the decision.

The statute also requires that the initial notification be followed by a written notice within two business days. There was no evidence that the SCIF informed Dr. Cheng of the UR denial within 24 hours of the decision being made. For this reason, the WCAB ruled that the UR was untimely — and therefore invalid.

In this case, WCAB Chairwoman Ronnie Caplane ruled that the WCAB was authorized to determine the medical necessity of Dr. Cheng’s recommended surgery. The only reason the WCAB did not do so was because the Board felt it did not have substantial medical evidence in the record to make a decision.

The Bodam Case Shows Us Exactly What to Expect when UR Is Deemed Untimely

The Bodam case is important because it shows the insurance industry a clear example of what makes UR “untimely” and how the WCAB will proceed when it deems UR untimely. Bodam gives us the first glimpse of the timelines that the WCAB spoke of in its reconsideration of Dubon.

Thanks to the Bodam case, we now know that UR can be deemed untimely not only when a decision is made too late (i.e. beyond five business days), but also when a decision is not communicated within 24 hours after making the UR decision to deny or modify. Thus, companies providing UR services must know and follow the law to ensure their decisions meet all timeliness requirements.

In some ways, it is still unfortunate that the WCAB has decided it will intervene in matters of timeliness and determine medical treatment. The WCAB judges do not have the training to make medical decisions — that’s one of the reasons why IMR was instituted in the first place. For example, it seems just as logical that if a UR is untimely the WCAB could make the carrier, at its own cost, perform a new expedited UR. But again, the bottom line is that we now know what exactly constitutes timeliness in the eyes of the WCAB. In this sense the Bodam case is helpful and should be studied to ensure that UR decisions are never ruled untimely and left to the the WCAB.

Tom Swiatek

As Assistant Vice President of Regulatory Services and General Counsel, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.