Delays can be costly, learn how to avoid them

SMS Team 2 months ago || WCAB Workers' Compenstation

When most Workers’ Compensation Appeals Board decisions are revealed, we defense attorneys take great interest in digesting their content and caselaw determination as well as guidance to apply to our current cases and future claims handling. You can never have too much information. Occasionally, some of the decisions reached are cryptic and can create more questions and answers for
our clientele.

Take for example, the following case:

Pena v. Aqua Systems (February 23, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS

In a nutshell: the applicant claimed a whole host of bodily and psychological injuries related to employment. Note that the applicant claimed both types of injuries. The bodily injury claims were accepted and treatment commenced with little issue. A problem arose when the applicant wanted to begin treatment for the psychological aspect of the claim. This was after delving into the orthopedic component of the claim and upon the completion of a psychiatric Qualified Medical Evaluators (QME) evaluation that found industrial causation.

The applicant ‘s attorney notified the defendant that they were going to send the applicant to a psychologist as a secondary treating physician based on the QME report and findings. The defendant did not voluntarily agree to the designation of a secondary treating physician and asserted that a Request for Authorization (RFA) from the Primary Treating Physician (PTP) was needed and one had not been provided. The defendant further asserted that the recommendation from the QME was insufficient to constitute a formal and proper request and that the PTP needed to comment and make a formal request for any and all secondary treating physician requests.

Long story short, the WCAB found that an RFA is not required for an applicant to be evaluated by a secondary treating physician. The WCAB also found that it is not required that the PTP make a formal request for the secondary treating physician and that the QME was enough to constitute substantial evidence on the question of causation. Further, the defendant had no other evidence to rebut the finding of causation. Due to the delay in providing care in sending the applicant to the secondary treating physician because of litigation, the defendant was subject to costs and penalties, pursuant to Labor Code section § 5814.5.

How will the Workers’ Comp Appeals Board decision be applied?

The decision brings some interesting questions to mind…

→First, if a secondary treating physician can be designated upon mention by the QME, then does that designation mean that there is simply an approval for an evaluation? Or is it an approval for actual care? Or, is it just a formality that a secondary treater was designated and then approval for actual care has to be made after an initial consultation?

→Second, once a secondary treater is designated, is the first visit the mandatory responsibility of the defendant? I would argue that this case implies that we are on the hook for the initial evaluation unless a valid defense would apply, such as causation in dispute, lack of substantial medical evidence, etc.

→Third, can the QME route simply be a back-door approval for additional care, new body parts, or an end-run around the typical Utilization Review (UR) process?  How can we apply arguments against the introduction of an evaluation from this source?

What you need to know when a secondary treating physician is designated

The main things to take away from the immediate findings Pena are as follows:

  • A primary treating physician apparently does not have to refer an applicant to a secondary physician per se, if there has been a QME finding that care was needed in that specialty.
  • An RFA is not necessarily needed to start to run the clock on your ability to subject this to UR, if it is even an option to do so.
  • Mere selection of a secondary treating physician is not subject to UR because selection alone is not a request for a course of medical treatment.
  • A secondary treating physician does not have to submit an RFA to begin treatment.
  • A QME panel can be the basis for the request and designation of a secondary treating physician.
  • If you are coming across a secondary treating designation situation, don’t delay! In our study case, the fees associated with the delay were 25% of the costs of the first visit with the secondary treater.


Of course, all of this is subject to applicable defenses and reasonable discovery. As long as you take prompt action regardless of your plan of action! And as noted from the beginning, there are many other questions as to how this could apply, could be enforced and could be defended.

Clear as mud? You are not alone if there is some confusion in your assessment of the decision reached by the WCAB. Feel free to give me a call to discuss the specifics and how I can be of service to you.

Timothy W. Rose, Esq.

Junior Partner | Manager, Sacramento Office

Siegel, Moreno & Stettler

3841 N. Freeway Blvd., Suite 130

Sacramento, CA 95834



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