Once an applicant requests treatment from a secondary treater, and there is no doubt as to the medical or legal basis for the request, an employer is obligated to provide the treatment.

There is no requirement that the applicant’s Primary Treating Physician make a referral or submit a Request for Authorization before an employer’s obligation to provide an opportunity to be seen by a secondary treater kicks in.

These are the key takeaways from the February 2019 WCAB panel decision Pena v. Aqua Systems.

The obligation stems from the basic requirements of Labor Code §4600 that defendants provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. The panel in Pena acknowledged that defendants remain entitled and obligated to submit treatment recommendations for an applicant’s condition to Utilization Review per Labor Code §4610. But they reasoned that, in the absence of any citable authority, the mere selection of a physician to provide medical treatment does not constitute a “specific course of proposed medical treatment” that would necessitate a Request for Authorization and be subject to Utilization Review.

The panel elaborated on the duties of a Primary Treating Physician, noting the selection of a doctor as a secondary treater is not a proposed specific course of treatment, but is simply a request for an opportunity to be seen by the secondary treater, who can then report to the Primary Treating Physician on what treatment, if any, is necessary to cure or relieve from the effects of the secondary condition.

This particular case involved an applicant with a previous Award pertaining to several orthopedic body parts, and which included future medical care. After the Award issued, applicant was seen by a psychiatric Panel Qualified Medical Evaluator, who found applicant sustained a compensable psychiatric injury and provided for future medical care. In accordance with the psychiatric PQME’s report, applicant requested a secondary treater for the psychiatric condition on July 6, 2018.

The defendants did not authorize the psychiatric secondary treater until October 25, 2018. After an October 29, 2018 trial set on the issues of psychiatric treatment and applicant’s Petition for Penalties per Labor Code §5814, the Workers’ Compensation Judge found this constituted an unreasonable delay under Labor Code §5814 and awarded a 25% penalty of the first visit with the psychiatric treater. The panel upheld the penalty, noting that in the event of a delay of benefits (§5814 allows a penalty up to the lesser of 25% of the delayed benefit or $10,000.00), the only satisfactory excuse is genuine doubt from a medical or legal standpoint as to liability for benefits.

Defendants also argued that the request to treat with the psychiatrist as a secondary treater was invalid because it was not a referral from applicant’s Primary Treating Physician. However, the panel ruled since defendants cited no statutory law or regulation in support of this position, it was without merit.

The primary lesson from this case is that authorizing applicant’s treatment with a secondary treater should not be delayed until receipt of a referral or a Request for Authorization from the Primary Treating Physician, unless there is a genuine medical or legal doubt as to liability for benefits. If there is a genuine medical or legal doubt for liability for benefits on the defendant’s part, they need to make this known rather than simply delaying or denying the request. The panel in Pena notes that defendants did not try to challenge the psychiatric PQME’s conclusions on causation or attempt to conduct any further discovery before the October 29, 2018 trial, which may otherwise have supported an argument of genuine doubt of liability by defendants.