On March 22, 2023, the Workers' Compensation Appeals Board (WCAB) issued its ninth, and possibly final, en banc decision regarding COVID-19, “In Re: COVID-19 State of...
Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to permit electronic service, including via email. The Labor Code, however, previously recognized electronic service of a request for authorization (RFA) for medical treatment. Specifically, LC 4610(i)(1) states: "The request for authorization and supporting documentation may be submitted electronically under rules adopted by the administrative director."
To avoid complications and unnecessary delays in the utilization review (UR) process, the Labor Code and administrative regulations also specify to whom and how RFAs must be served. LC 4610(g)(2)(A) requires a requesting physician to send an RFA "to the claims administrator for the employer, insurer, or other entity according to the rules adopted by the administrative director." That language was adopted because physicians expressed difficulty in determining to whom an RFA should be sent. So the Labor Code clarifies that the RFA and related materials should be sent to the claims administrator.
CCR 9792.6.1(t)(3) states that an RFA "may be mailed, faxed or e-mailed to, if designated, the address, fax number, or e-mail address designated by the claims administrator for this purpose." So that regulation has long allowed an RFA to be mailed, faxed or emailed, but also allows a claims administrator to designate the address, fax number or email address for RFAs that must be sent to utilization review. The claims administrator is not required to accept an RFA at its usual address, fax number or email address. In fact, many do not because it's more efficient to have RFAs sent directly to a UR provider.
In the recent decision of Quinones v. Corona Auto Parts Recycling, 2021 Cal. Wrk. Comp. P.D. LEXIS 359, the WCAB upheld a decision that a failure to send an RFA to the address, fax number or email address designated by the claims administrator for UR purposes could extend the time limit for a UR determination. In that case, a treating physician requested authorization for low back surgery, but the RFAs were faxed to the applicant's counsel. There was no evidence that the physician faxed the RFAs to the defendant. The applicant's counsel then faxed the RFAs to the claims adjuster's general number, even though the defendant previously notified the attorney of the fax number and email address for utilization review requests. The defendant claimed that it did not receive the RFAs until eight days after they were faxed by the applicant's counsel, and it issued a UR determination after receipt.
The appeals board held that the defendant's utilization review determination was timely. It explained that because the applicant's counsel did not fax the RFAs to the number designated by the defendant for UR purposes per CCR 9792.6.1(t)(3), the utilization review process was not initiated by the applicant counsel's fax.
The defendant's designation of a fax number and email address, and notification of the applicant's counsel of same, allowed it to argue that the applicant counsel's fax did not trigger the utilization review process and time limits. Accordingly, claims administrators should be sure to provide treating physicians and applicant attorneys with a designated address, fax number and/or email address for utilization review requests, if they aren't already doing so.
Note: Defendants still have a duty to act on receipt of an RFA. It would be improper for a defendant to assert that it's not required to send an RFA to utilization review unless and until it is sent to a designated address, fax number or email address. Defendants have a general duty to administer benefits in good faith. But establishing a designated fax number or email address for this purpose might provide more time for defendants to conduct utilization review.
For further discussion on this topic, see "Sullivan on Comp" Section 7.34 Utilization Review — Request for Authorization.