The five day notice deadline is not met if notice is sent on the sixth day following a Utilization Review determination. Though UR decisions “shall be communicated…within 24 hours of the decision…” a strict reading of the statute gives a total “not to exceed five days.” The 24 hour language is a subsection that does not specifically indicate “section (1) notwithstanding.” Therefore, a sixth day notice is untimely based on a strict reading of the statute.

However, based on additional statutory language, a successful defense can be raised on any claim that a sixth-day notice was late.

Labor Code § 4610(g) reads as follows:

(1) Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the 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. In cases where the review is retrospective, the decision shall be communicated to the individual who received services, or to the individual’s designee, within 30 days of receipt of information that is reasonably necessary to make this determination.

(2) When the employee’s condition is such that the employee faces an imminent and serious threat to his or her health, including, but not limited to, the potential loss of life, limb, or other major bodily function, or the normal time frame for the decision making process, as described in paragraph (1), would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function, decisions to approve, modify, delay, or deny requests by physicians prior to, or concurrent with, the provision of medical treatment services to employees shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination.

(3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4062. If a request to perform spinal surgery is denied, disputes shall be resolved in accordance with subdivision (b) of Section 4062.

Treatment requests must always go through Utilization Review even on denied cases pursuant to Sandhagan and the Division of Workers’ Compensation mandate. If Utilization is not utilized, there is a risk of audit and other penalties. The DWC’s position is that “all requests are subject to UR” and “a case currently pending before the California Supreme Court is expected to clarify the issue definitively later this year.”

When UR finds the treatment reasonable but there is an issue with causation, it is recommended by the DWC that the UR physician answer whether the treatment is necessary. If it is necessary, the physician should state that in the UR report. However if the UR physician feels the necessary treatment may not be due to the claimed injury, the UR physician should also state that as well.

Claims administrators can then issue a denial and a causation objection under LC 4062 and trigger the AME/QME process. The UR physician must provide a clear and concise explanation of his conclusions and concerns regarding causation. This should be incorporated into the denial issued by the claims adjuster. (8 CCR § 9792.9(j)(4))

Any straight denial by a UR physician of a medical treatment request on the grounds of AOE/COE could be found in violation of 8 CCR § 9792.6(s), § 9792.9(j) and § 9792.9(l), as well as the express wording of Simmons, which states “the UR reviewing physician does not have the authority to determine causation.“