Mastagni Holstedt Gets PERB Complaint for Employer Refusal to Provide Information

Mastagni attorneys Kathleen Mastagni Storm and Chelsea Avent recently got a Public Employment Relations Board (“PERB”) Complaint issued against the County of Kern for refusing to provide relevant information to Kern County Fire Fighters Association, Local 1301. PERB concluded the County violated the Meyers-Milias-Brown Act by withholding the information from Local 1301.

For over a year, the County dragged its feet and engaged in bad faith bargaining. In July 2018, Local 1301 and the County began negotiations for a successor Memorandum of Understanding (“MOU”). The bargaining ended in a mediation and a fact finding hearing between the parties. Local 1301’s chief negotiator Robbie McCandlish and attorney Howard Liberman’s hard work during the hearing got a favorable fact finding report for Local 1301. The report noted the County had over $180 million in reserves, Local 1301 were the lowest paid personnel in the surveyed departments, and that members have seen minimal to no pay increases since 2008.

During bargaining, the County told Local 1301 it intended to cut approximately three million dollars from the Fire Department’s overall budget. The County insisted on concessions from Local 1301. Local 1301 decided to seek out alternative cost saving proposals in an effort to mitigate the harm a pay cut would have.

Beginning in October 2018, Local 1301 requested information regarding healthcare plans, member information, and claim details to obtain health care cost quotes from outside companies to formulate its proposals for group insurance plans during bargaining.

Between December and April 2019, the County slowly provided different variations of aggregate information for enrollment count, number of dependents, workers’ compensation claims, and annual medical claims. Local 1301 continued requesting the specific information and attempted to work with the County to find an agreeable way to provide the information that would not allow the identification of any members. It was not until April 2019 the County finally told Local 1301 it could not provide the information claiming it could violate health privacy laws.

PERB’s Complaint concluded the County refused to provide information relevant and necessary to Local 1301’s discharge of its duty to represent employees. Further, the County violated the MMBA by refusing to meet and confer in good faith over the requested information, interfering with members’ rights to be represented, and interfering with Local 1301’s right to represent members.

This decision confirms an employer’s duty to either supply relevant information or timely and adequately explain why it cannot provide the information. Even if the employer ultimately provides the requested information, it will not excuse an unreasonable delay.  An employer’s refusal to provide information amounts to bad faith bargaining in violation of the MMBA.

Delays in Obtaining Medical Treatment

First, it is important to note that securing medical treatment under a workers’ compensation claim is procedurally quite different than treating with one’s family doctor. When a patient receives a prescription for medication or any other form of treatment under private insurance, the patient usually expects the pharmacy to fill the prescription immediately. However, within the context of a workers’ compensation claim, merely obtaining a prescription and presenting it to the pharmacy may not be sufficient to ensure the employer will be responsible for the cost of that prescription.

In fact, if one attempts to procure treatment for a work injury as if it were a non-work-related condition, that persons runs the risk of becoming financially responsible for the treatment at issue.

Naturally, steps should be taken, when possible, to avoid that undesirable outcome.

Ensuring the employer’s insurance company is financially responsible for medical treatment begins with adhering to and considering the necessary steps of the mandatory Utilization Review process.

What is Utilization Review?

For all work-related injuries occurring after January 01, 2013, pursuant to SB 863, all medical treatment requests under workers’ compensation claims must be submitted to Utilization Review. 

It should be noted that Utilization Review has an extensive legislative history in the State of California and is implicated by many sources of law. Those sources include but are not limited, to Assembly Bill 749, Senate Bill 899, and are further codified in California Labor Code Sections 4062 and 4610.

Utilization Review applies within the first 90 days of filing a claim, also known as the investigation period allocated to the Employer, but the Employer is only responsible for the cost of reasonable medical treatment, up to $10,000.00, during that 90-day-period. After the first 90 days, the insurance company must have accepted liability for the claim/body part for which treatment is being sought, prior to there being a possible application of utilization review.

If your claim is denied or even if it has been accepted, it may be an appropriate time to seek legal counsel to facilitate administration of a claim for a workplace injury.

Initiating Utilization Review

The purpose of utilization review is to answer the question of whether treatment is medically necessary according to the relevant treatment guidelines. The possible answers to that question are: yes (“certified”); no (“non-certified”); or in-part yes or no (“modified”).

If the Employer requests Utilization Review, that request is first triggered based upon steps taken by an injured worker’s Primary Treating Physician.

Primary Treating Physician (“PTP”) is a defined term by law and is the doctor designated in advance with the Employer to fulfill the duties indicated in California Code of Regulations Section 9785, among others. Some of those duties will be outlined below and are much different than those a private doctor would need to follow.

On that note, choosing a PTP may be an appropriate topic of discussion with an attorney.

Further, if liability for a workers’ compensation claim or any aspect thereof has been accepted, an injured worker’s PTP, requesting treatment, must submit a Request for Authorization (“RFA”) and Physician Progress Report (“PR-2”).

The RFA is a state required form specific to the purposes of requesting treatment under a workers’ compensation claim. The RFA is mainly a claim demographic form, identifying the injured worker, workers’ compensation insurance carrier, and the PTP. However, and importantly, the RFA also includes the name and diagnostic codes of the specific treatment being requested in terms of quantity, frequency, and duration. The PTP must sign the RFA and transmit it along with the PR-2 (progress report) to the workers’ compensation insurance carrier to request medical treatment.

It is important to note that those steps, although necessary, do not guarantee whether the outcome of utilization review is certified; non-certified; or a modification. Further, a utilization review decision on the basis of any one RFA and PR-2 does not necessarily mean that future RFAs and PR-2s will result in the same decision (i.e. certified; non-certified; or modified).

Similarly, if treatment is approved or approved-in-part, the workers’ compensation insurance carrier will be financially responsible for the approved portions of request(s) associated with a given RFA and PR-2. So, since any approved portions stem from one RFA and PR-2, the PTP will have to complete subsequent RFAs and PR-2s for any future treatment requests. Thus, once the PTP transmits a RFA/PR-2 to the workers’ compensation insurance carrier, timing issues must then be considered.

Timing Under Utilization Review:

The gist of these timing elements, for better or worse, often amounts to delay in obtaining medical treatment.  California Labor Code 4610(g)(1) provides that a utilization review decision must be made within 5 working days from the receipt of 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. Further, California Labor Code 4610(g)(3)(A) requires that a decision be communicated to the physician within 24 hours of the decision and in writing within two business days to the physician, employee, and if represented, legal counsel as well.

These timing provisions apply to the workers’ compensation insurance carrier that receives an RFA and PR-2 from an injured worker’s PTP. The timing provisions may seem a disadvantage to persons who expect to obtain treatment in the same manner as from one’s family doctor. However, the timing issues presented by utilization review may provide guidance in developing a treatment plan for a work injury.

Failure by a carrier to timely respond to all RFA’s and PR-2s (i.e. to conduct utilization review) means that medical necessity is an issue that may be properly decided by the Workers’ Compensation Appeals Board, based upon substantial evidence. Thus, if an injured worker believes that an RFA and PR-2 has not received a timely response then it would be appropriate to seek legal counsel to discuss the propriety of pursuing the matter further before the Workers’ Compensation Appeals Board, or otherwise. However, if a utilization review decision is timely, but the decision is denial of treatment or modification then an injured worker’s sole remedy is to file for Independent Medical Review (a topic to discuss further with an attorney).

Concluding Remarks:

Obtaining medical treatment under a workers’ compensation claim is more complicated than simply taking a prescription to the pharmacy and can often be a source of delay. However, working with one’s workers’ compensation PTP and/or legal counsel are ways to help facilitate treatment.

It is important to note that this article is not an exhaustive explanation of all nuances pertaining to utilization review.

This article is intended to provide only general information regarding the procedural steps and timing issues that must be considered when pursuing medical treatment under workers’ compensation.

If you have suffered a work injury or are considering legal representation related to workers’ compensation issues, please contact our office at (916) 446-4692 for a free consultation.