New WCAB Case Refocuses Burden to Document RFA on Provider

Recently, the Workers’ Comp Appeals Board issued a decision that refocuses the utilization review (UR) burden to provide medical records, on the provider. In the case of Kathleen McKinney v. Enterprise Rent-A-Car, McKinney was employed by Enterprise as a driver. On Sept. 23, 2014 she sustained a work-related neck injury. Enterprise was self-insured with Travelers Property Casualty Company, and York Risk Services acted as the Third Party Administrator. In 2015, McKinney’s primary treating physician was Dr. Felicia Radu of the Spine & Sports Medical Group.

On Feb. 26, 2015 Dr. Radu sent York Risk Services a Request for Authorization (RFA). The RFA contained requests for diclofenac (common brands include Voltaren and Zipsor), Salonpas patches, trigger point injections, and the muscle relaxer Soma. However, the RFAs did not contain the compete medical records. For example, the request for diclofenac accompanied medical records that showed McKinney was taking nonsteroidal anti-inflammatory drugs (or NSAIDs) without any benefit in functional improvement. As for the trigger point injections, the medical records provided by Dr. Radu did not document twitch response.

All of these requests were sent to WellComp for UR and were timely denied by WellComp’s reviewing physicians. The reviewing physicians said the requested treatments were not consistent with the California Medical Treatment Utilization Schedule (MTUS) and that based upon the medical records provided by Dr. Radu, were not medically necessary.

At this juncture, the attorney for McKinney, Michael J. Richter, alleged that Travelers (1) had a copy of the complete medical records, and (2) should have taken the initiative and submitted them to WellComp even though Dr. Radu had failed to do so. After all, each of the four UR denials specifically relied on documentation provided by Dr. Radu. And in each instance Travelers took the position that they had a right to rely on the medical records provided by Dr. Radu, and had no duty to supplement Dr. Radu’s RFA.

Michael J. Richter then filed a request for a hearing with the WCAB and requested sanctions per LC Sec. 5813 for bad faith actions intended, among other things, to cause delay. Specifically, the allegations were that Travelers had a duty to provide WellComp with the complete medical records.  Mr. Richter alleged that had Travelers done so, Dr. Radu’s RFA would not have been denied.

On Sept. 23, 2016, the WCAB issued its opinion. It said that CCR 9785(g) and 9792.6.1(t)(2) require the primary treating physician to include documentation substantiating the need for the requested treatment. The primary treating physician, not a claims adjuster, knows what medical records substantiate the requested treatment. The failure of Travelers, York, or anyone else to provide the pertinent medical records was not a failure of its regulatory or statutory obligations, nor was it an indication of bad faith.

This is an interesting case because it appears that the WCAB has slammed the door on any attempt to shift the burden of documenting an RFA away from the provider. Going forward, providers should be alert that the burden of documenting an RFA falls on them. If they fail to do so the WCAB will not rule that the carrier has a duty to supplement the UR provider with additional medical records.

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