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Boise Cascade Corp. v. Huizar12/20/1994
en claim can be denied pursuant to WAC 296-20-03001(2) and WAC 296-20-03001(15), which requires that a claimant obtain prior authorization for specified types of medical treatment.
Although L&I;directed Boise Cascade to deny responsibility for Mr. Wentz' surgery because it determined no causal relationship between the industrial injury and the surgery had been shown and Dr. Orvald had not requested prior authorization, the Board reversed. As stated in the Board decision:
Dr. Orvald's letters to the self-insured employer, dated March 30, 1989 and April 25, 1989, when considered together contain medical information sufficient to relate the claimant's need for surgery to the industrial injury of July 9, 1987. These letters communicate in clear terms the physician's conclusion that the claimant's problem with his upper right extremity is related to cervical injury. The factors of supporting Dr. Orvald's diagnosis were examined in depth at the hearing. The claimant has met the burden of establishing a causal relationship between the condition treated in the cervical surgery of May 18, 1989 and the industrial injury of July 9, 1987. . . .
There remains the matter of communication . . . required by WAC 296-20-03001 . . . Dr. Orvald's letters of March 30, 1989 and April 15, 1989, to the self-insured employer, contain much of the information. The letter of March 30, 1989 also recites that it encloses the doctor's office notes on Mr. Wentz. Dr. Orvald testified these notes contain detailed information regarding Mr. Wentz's condition. Further, consulting medical opinions were obtained prior to the surgery.
The Board entered the following finding:
5. Prior to issuing its letters of April 14, 1989, to the claimant and Dr. Orvald, the self-insured employer understood that the claimant and his attending physician sought the employer's approval pursuant to workers' compensation requirements for surgery to correct the claimant's cervical condition, which the doctor believed to be caused by the July 9, 1987 industrial injury. The employer did not accept responsibility for the surgery.
At summary judgment, L&I;informed the court that it paid for surgeries without prior authorization when there was litigation. L&I;explained:
It is the Department's policy and practice to pay for the costs of surgery when the Department has . . . denied responsibility for the cost of that surgery . . . and later litigation shows that the Department wrongfully denied that.
Our reason for doing that is because it is somewhat of a nonsensical proposition to assume that the Department or a self-insured employer would authorize surgery when the need for that surgery or the responsibility of the Department or the self-insured employer were currently under litigation. If that surgery was authorized, it would be a very open admission that the surgery was causally related to the industrial injury, or the need for the surgery was, and that the surgery was medically necessary.
Since L&I;promulgated the rule at issue, deference is accorded L&I;s construction of it. Cf. Mall, Inc. v. Seattle, 108 Wash. 2d 369, 378, 739 P.2d 668 (1987).
As Boise Cascade points out, courts are not to construe a regulation which is clear and unambiguous. See Harris v. Department of Labor & Indus., 120 Wash. 2d 461, 474, 843 P.2d 1056 (1993). However, if a claimant can establish that he or she notified L&I;or the self-insured of the need for medical treatment and supplied information pertinent to a determination of whether the treatment
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