Attorneys Have Mixed Views on whether Bodam Brings Clarity or Confusion

"...he remains adamant that treatment decisions "should depend on the medicine, on need and on the patient," and he was having a hard time coming to terms with the idea that "we're in a situation where we're deciding medical need based on timing." So, even though he's grateful to have the opportunity Bodam has opened up for a judge to look at the medical evidence and decide the need for treatment, Gurvey said he thought the decision has "muddied the waters more," paving the way for 2015 to be "a crazy litigated year."   Alan Gurvey

Applicant and defense attorneys across the state have mixed views on the direction that the Workers' Compensation Appeals Board has indicated it is heading with its recent significant panel decision, Bodam v. San Bernardino County.

Without question, the issue of when and how the board can decide medical necessity for a worker's treatment has been hotly contested. The board has addressed the issue twice this year, en banc, before it issued Bodam earlier this month.

Both applicants' and defense attorneys said they think the board was correct in holding that a utilization-review decision is invalid if it is made within the time frame allowed by the Rules of the Administrative Director but not timely communicated to the worker and treating doctor.

Applicants' attorneys hailed the Bodam ruling as an opportunity for workers to get disputes about medical necessity out of the independent medical-review process, while defense attorneys say they appreciate having a clear-cut rule on when the board is going to be the decision-maker. Attorneys on both sides of the bar are also voicing concerns that the procedure for making treatment decisions will now be the focus of the comp system instead of the actual provision of treatment.

In Bodam, a WCAB panel comprised of Chairwoman Ronnie Caplane, Commissioner Frank Brass and Deputy Commissioner Neil Sullivan said that utilization-review decisions that are not timely communicated to a worker and treating doctor are invalid. The full board deemed the panel decision "significant," meaning it is citable but not binding precedent.

Labor Code Section 4610 requires a payer to issue a UR decision on a request for prospective treatment within five days from the reviewer's receipt of the necessary information to issue a decision. Section 4610(g)(3)(A) obligates the payer to communicate the UR decision to the requesting doctor within 24 hours of the decision. This initial notification must then be followed by a written notice within two business days.

The payer in the Bodam case had taken less than five days for a UR reviewer to make the decision to deny the requested treatment, but the WCAB panel said that it still had only 24 hours to issue notice of the decision to the applicant and treating doctor once that decision was made. Since it failed to do so, the board said it had the authority to decide whether Timothy Bodam should get the back surgery his doctor had recommended.

Defense attorney Michael D. Peabody of Bradford & Barthel said he sees the Bodam decision as "a clarifying follow-up" to the en banc decisions in Dubon v. World Restoration.

The WCAB shook up the comp community in February with its original decision in Dubon, in which it asserted its authority to decide issues of medical necessity for UR decisions that are untimely or suffering from "material procedural defects." 

After this, the composition of the board changed. Commissioner Alfonso Moresi stepped down and former Department of Industrial Relations Chief Counsel Kathy Zalewski came on to the board.

The board issued a new en banc decision in October, retreating from its earlier stance. This time, the board said that issues of medical necessity would come to it instead of going to IMR only if the UR decision was untimely.

Peabody opined that the board, in Bodam, is clarifying that "in order to meet the requirements of a 'timely' decision, it must also be communicated in a timely fashion."

Fellow defense attorney Scott Davenport of Manning & Kass Ellrod Ramirez & Trester agreed that the point of Bodam was to clarify Dubon II. He said he too saw Bodam as "confirming the notion that the decision must not only be made in a timely fashion but also communicated to the physician in a timely fashion." 

Gerald Lenahan of Lenahan Lee Slater & Pearse, said he thinks the Dubon and Bodam cases have brought the comp system to a point where "timeliness is the only issue" an applicant can raise to challenge a UR decision outside of IMR.

As a defense attorney, he said he's "happy we only have one issue to worry about now," although he noted that the board seems to be indicating that it is "going to be strict about the time requirements," so "if you're a day late and a dollar short, you lose."

Lenahan acknowledged that this makes defending the UR decision "very technical," with the focus on when the treatment request was made, when the request was sent to UR, when the UR decision was made and when the decision was communicated.

But, he said, "now everybody knows the rules," and "you know going in if you have a win or a loser" since everything was either done on time, or it wasn't.

Defense attorney Thomas A. Richard of RTGR Law was slightly less enthusiastic.

"Certainly, the requirement that UR decisions issue in a timely manner makes perfect sense," he said, since "we want reasonable, necessary treatment to be approved as soon as possible, and confirmation of same to be communicated as soon as possible, so that the prescription can be filled right away to cure or relieve from the effects of the injury."

But, Richard queried, "what real harm comes from a minor delay in notification?"

He said he was concerned that Bodam's strict enforcement of timelines may lead to a game of "gotcha," and an emphasis on "form ... over substance."

Richard also said it was possible to get "the impression that the WCAB panel was just looking for any excuse to take medical control away from UR/IMR."

Applicant attorney Alan Gurvey of Rowen, Gurvey & Win said he also suspected that the board "really believes judges are the right people to be adjudicating medical necessity."

While the board severely limited its ability to do so in Dubon II, Gurvey suggested that the Bodam decision possibly "will put it back in their hands" and be "a way to get around Dubon."

Although this could be a good thing for applicants, since IMR decisions tend to uphold UR denials more often than not, Gurvey said he was worried the comp system is headed down "a slippery slope."

By making timeliness the only way to challenge a UR decision outside of IMR, "we're going to be looking at who was served and when and how," and it's "just going to potentially be a mess," he warned.

Gurvey said he remains adamant that treatment decisions "should depend on the medicine, on need and on the patient," and he was having a hard time coming to terms with the idea that "we're in a situation where we're deciding medical need based on timing."

So, even though he's grateful to have the opportunity Bodam has opened up for a judge to look at the medical evidence and decide the need for treatment, Gurvey said he thought the decision has "muddied the waters more," paving the way for 2015 to be "a crazy litigated year."

Richard "Jake" Jacobsmeyer of Shaw Jacobsmeyer Crain & Claffey said he also thought the panel decision in Bodam may not be the end of the case.

"I expect this case will go further," he said. "It may become the 'test case' at the Court of Appeals for whether timeliness failures allow the board to decide medical care."

Steve Hopcraft, a spokesman for the California Applicants' Attorneys Association, said the organization agreed with the panel decision in Bodam, but didn't think it says timeliness is the only way for a worker to challenge an unfavorable UR decision

"Labor Code Section 4610(g) enumerates other mandatory requirements that must be met in the UR process, other than timeliness," he noted. "These are compulsory procedural and substantive requirements to render a UR decision valid," in CAAA's estimation, and IMR "should not be reviewing UR decisions that don’t meet all of the requirements of the statute," Hopcraft said.

Published on 12/1/2014 by WorkCompCentral, authored by Sherri Okamoto