So, there you are – triumphantly stroking the recent independent medical review decision which upheld the utilization-review determination that the injured worker is not entitled to fresh shipments of caviar to help with his industrial paper cut. What a wonderful feeling – justice is done, the system worked, and now the price on caviar will not skyrocket out of your price range, such as this scene captured at Occupy Wall Street so many years ago...

Caviar at Wall Street

Well, the injured worker decided to appeal the IMR decision… to his treating physician. “But Dr. Beluga, I need the caviar to make the boo boo go away, it’s the only thing that works!” Well, seeing as how Dr. Beluga is a strong believer in the medicinal properties of caviar, he submits another request for authorization, thinking this one will fall through the cracks.

Are you required to process this request again… and again… and again… until between UR and IMR, it would have been cheaper to authorize the treatment?

Well, probably not.

Labor Code Section 4610(g)(6) provides that “[a UR] decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”

So, Dr. Beluga can only request caviar injections but once a year, unless his second request for authorization is “supported by a documented change in the facts material to the basis of the [UR] decision.”

Now, here’s an interesting question for all y’all: Form 9785.5, the Request for Authorization form, offers options at the top of the form: “New Request” or “Resubmission – Change in Material Fact.” What happens when the doctor submits a report with his or her RFA discussing the change in material fact, but fails to check the “resubmission” box? Can the defense ignore the same requested treatment by the same physician? Your humble blogger doesn’t know, but if faced with this situation will likely argue for the “Resubmission.”

In fact, a recent panel opinion (Martha Reyes v. Target) held just that: A defendant is free to ignore the RFA for the same treatment by the same physician which UR recommended be denied less than 12 months before. And, in conjunction with Dubon, carriers can effectively budget one UR and one IMR per treatment request per year.

Gregory Grinberg is a workers' compensation defense attorney in San Mateo, California. This column was reprinted with his permission from his WCDefenseCA blog.