Understanding Labor Code Sec. 4610(g)(6) “Change in Facts”

| | Utilization Review

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Toms Nov 2016 McKinney Case Law Summary
In California, an employer (or its insurance carrier) is generally not required to process a previously denied utilization review (UR) request. California is one of the few states that has such a statute, and the provision generally works well to keep treating physicians from re-requesting the same treatment over and over. As an example, if a request for a spinal fusion was denied in UR and later by IMR (we’ll assume that the applicant requested IMR within 30 days of the UR denial), the treating physician cannot request the spinal fusion again. Pursuant to the code, the UR decision remains effective for 12 months from the date of the decision. However, this rule does not apply if there has been a change in facts supported by documentation.

While the CA Labor Code does not define what a change in facts is, there is a 2016 case on point called Naus v. Central Village Centre (BPD) 44 CWCR 218. In this case the applicant sustained an industrial injury to multiple body parts including the spine. The applicant’s treating physician submitted a Request for Authorization (RFA), dated Sept. 9, 2015, for a spinal cord stimulator trial and a psychological evaluation. The purpose of the stimulator trial was to “test drive” it (usually a 7 day period) to determine whether or not a spinal cord stimulator would be effective in blocking pain signals to the brain.

Both requests were denied in UR. Applicant timely requested IMR. The IMR reviewer, while denying the spinal cord stimulator trial, allowed the psychological evaluation to go forward. On January 5, 2016 the applicant had the psychological evaluation. The evaluator opined that there was no psychological reason not to proceed with the spinal cord stimulator trial.

Applicant’s treating physician believed, based upon the results of the psychological evaluation, and applicant’s deteriorating spinal condition, that the spinal cord stimulator trial was warranted. On Feb. 10, 2016 the treating physician submitted an RFA for the spinal cord stimulator trial. The treating physician documented evidence in the psychological evaluation along with the applicant’s deteriorating condition.

The carrier refused to submit the RFA to UR stating that a UR denial of the spinal cord stimulator is effective for one year.  Counsel for the applicant moved for a hearing before the WCAB. At the hearing the Board ruled that the results of the psych evaluation, along with the applicant’s deteriorating condition, was a legitimate change in facts. The Board said the defendant did not conduct a timely UR, and awarded the stimulator trial and penalties and attorney’s fees per LC Sec. 5814 and LC Sec. 5814.5.

The bottom line is a carrier must be aware that any documented change in facts, even if they don’t appear substantial in the carrier’s eyes, should cause the request to be sent to UR. Otherwise, the carrier risks incurring penalties and attorney’s fees should the WCAB rule against them.

Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, 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 California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.