Medical Treatment and UR

Ramirez v. WCAB (Court of Appeal Published) (82 CCC 327):

Daniel Ramirez sustained an injury to his lower ankle in the course of his employment for the State Department of Health Care Services.  Ramirez settled this case by way of Stipulations with Request for Award which provided for future medical treatment.  The treatment included a gym/swim membership and over the course of about 1 ½ years 24 sessions of acupuncture were authorized.

In July 2014 applicant’s physician prescribed 12 sessions of acupuncture. The utilization review recommended the treatment be denied. The reviewer’s rationale in denying the treatment was that the acupuncture is recommended as a short-course treatment in conjunction with other interventions for a total of up to 8 to 12 visits over 4 to 6 weeks, where there is evidence of reduced pain and medication use, and there is functional improvement. The reviewer stated the applicant had already completed the maximum number of recommended therapy sessions, thus the request was not reasonable.

The applicant appealed the utilization review denial under the Independent Medical Review Process. The Independent medical review noted the applicant had 24 prior acupuncture sessions approved and there had been no change in his work restrictions or functional improvement for almost a year. The Independent medical review denied the requested treatment and stated according to evidence-based guidelines, further acupuncture or visits after initial trial are medically based on documented functional improvement. The claimant had at least 24 acupuncture visits approved in the last year. Due to the lack of objective functional improvement and decrease dependence on medical treatment, further acupuncture was not medically necessary.

The applicant appealed the decision to the Board. The grounds for appeal were that the independent reviewer may have been subject to a material conflict of interest and the determination may have been the result of bias on the basis of race, national origin, ethnic identification, rigid religion, age, sex, sex orientation, color a disability. The applicant wanted discovery determine whether the doctor performing the Independent medical review was biased or had a conflict of interest. The appeal also argued the denial was materially defective because it failed to show the medical treatment utilization schedule. The applicant argued the material defect was equivalent to an untimely utilization review, which could be appealed to the Appeals Board under Dubon II.  The applicant argued the Independent medical review doctor had improperly made credibility judgments about the applicant physician’s report. To the extent that the Board was prevented from disclosing the identity of the doctor who did the review, applicant raised constitutional challenges including but not limited to denial of his right to substantive and procedural due process. The applicant understood the Appeals Board could not rule on constitutionality of Labor Code provisions, however, applicant raises this issue to preserve his appeal.

The appeal was ordered taken off calendar at the request of the defendant because the applicant wanted only to raise the constitutional issue, over which the Board could not review.

The applicant filed a petition for removal or reconsideration of order taking matter off calendar. A Workers’ Compensation Judge reviewed the petition and recommended the petition for reconsideration be dismissed or denied. The WCJ determined the petition should be dismissed because it was not based on any of the grounds set forth Labor Code §5903. Likewise, petition for removal must be based on the grounds that the order will result in significant prejudice or irreparable harm. The WCJ found neither exist. The WCJ further found that there was no legal basis for the constitutional challenge because the Board has no power to declare a Statute unconstitutional.

The WCAB dismissed the reconsideration petition because it was from an order taking the matter off calendar, which was not a final order. The Board found the petition for removal was subject to denial because in order taking matter off calendar does not result in substantial prejudice or irreparable harm. Nevertheless, because the petition for removal raised only constitutional issues that the Board had no authority to resolve. The court granted removal to give the applicant a final order for purposes of review.

The applicant filed a petition for writ of review.

The question that was presented was if the Board had jurisdiction to review an Independent medical review on the ground that the underlying utilization review did not use the medical treatment utilization schedule.

In Dubon II the Court concluded that a utilization review determination is invalid only if it is untimely. If a utilization review decision is untimely, it is invalid, and is not subject Independent medical review. A dispute over the timeliness of the utilization review decision is a legal dispute within the Board’s jurisdiction, but all other disputes regarding the utilization review decision must be resolved by an independent medical review. If the Board determines that a utilization review decision is untimely, the Board may determine the medical necessity of the proposed treatment based on substantial medical evidence.

The applicant challenged the Board’s opinion in Dubon II arguing that the Board has jurisdiction over utilization reviews that are both untimely and procedurally deficient. The argument of the applicant that the Board has jurisdiction in this case is his assertion that the utilization review doctor did not follow the medical treatment utilization schedule, thus did not follow the proper procedure.

In this case the applicant utilization review was timely. Nevertheless, the applicant asserts that the Board has jurisdiction over his utilization review because it was materially defective.

If a utilization review decision denies or modifies a treatment recommendation based on medical necessity, the employee may request an Independent medical review. A utilization review decision may be reviewed or repealed only by Independent medical review pursuant to 4610.5.

The statute provides no exception for materially defective utilization review.

The legislature provided only one method for review or appeal of utilization review, that is by Independent medical review. Thus, the Board had no jurisdiction in this case to review the utilization review decision.

The Court of Appeal found the applicant had no claim that the Board jurisdiction on one of the grounds allowing review of Independent medical review set forth in the Labor Code as a reason to appeal and of Independent medical review decision to the appeals Board and giving them jurisdiction over that issue.

To the extent the Board has jurisdiction to review utilization review, it has only jurisdiction over nonmedical issues such as timeliness.

Any question that has effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of Independent medical review.

The Labor Code provides that in no event shall Worker’s Compensation administrative law judge, the appeals Board, or any higher court make a determination of medical necessity contrary to the determination.

Whether the UR reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by Independent medical review.

The task of determining whether the denial was in compliance with the medical treatment utilization schedule is appropriately delegated to the Independent medical reviewer, was better able to determine whether the medical treatment utilization schedule was followed.

Statutory scheme presumes that a utilization reviewer relies on an incorrect guideline, not the medical treatment utilization schedule, the mistake will be corrected by Independent medical review because the Independent medical review is also required to be based on medical treatment utilization schedule.

In this case the Independent medical reviewer specifically noted that the decision was based on the medical treatment utilization schedule. The rationale for the Independent medical reviewer’s denial was that further acupuncture was not medically necessary because there been no functional improvement.

Applicant’s attorney also argues that a medically defective utilization review is an untimely review over which the Board has jurisdiction. The Court of Appeal rejected this argument. There was no dispute over the fact utilization review was performed within the statutory time praying.

The Court of Appeal concluded the Board had no jurisdiction to review a utilization review that was alleged to be defective failure to follow the medical treatment utilization schedule. Whether the utilization review follows the medical treatment utilization schedule is directly related to a determination of medical necessity. By statute, review of a determination of medical necessity is limited to the medical professionals performing the Independent medical review.

The Board properly dismissed the petition for reconsideration because it had no power to determine whether the utilization review was materially defective and the applicant did not state a proper ground for appeal of the Independent medical review to the Appeals Board.

The Court of Appeal went on to find that Independent medical review did not violate the State Separation of powers were Due process of law. The Court of Appeal agreed with the decision in Stevens the WCAB (241 Cal App 4th 1074). The court also concluded Independent Medical Review did not violate federal procedural due process.

The order of the WCJ taking matter off calendar was reversed. The WCJ was directed and or order consistent with the use of this decision.

Stevens v. Outspoken Enterprises, Inc. (BPD) (45 WCR 147)

The WCJ and upheld by the WCAB held that the Appeals Board lacked the power to review an IMR determination of medical necessity absent a showing by clear and convincing evidence that establishes the grounds for appeal under one or more of the five categories listed in Labor Code §4610.6(h).  The WCAB further agreed with the WCJ that they had no authority to determine the constitutionality of the IMR statutes which was raised as an issue by applicant.

The applicant filed a Petition for writ of review which was granted by the Court of Appeal

The Court of Appeal upheld the constitutionality of the IMR statutes. The Court of Appeal further held that the Appeals Board applied the wrong standard of review of an IMR determination and the that the WCAB had considerable authority to review both factual and legal questions in determining whether an IMR determination was adopted without authority or is based on a plainly erroneous fact not subject to expert opinion.

The matter was returned to the WCAB on remittitur from the Court of Appeal, following the Order of the California Supreme Court denying applicants Petition for Review and the Order of the Supreme Court of the United States denying applicants Petition for Writ of Certiorari.

The decision of the Court of Appeal remanded the matter to the Appeals Board to consider whether the applicant’s request for housekeeping and personal services was denied without authority.

The WCAB on remand held the MTUS is based upon the application of evidence-based medicine to ensure that clinical decision making is guided by the integration of the best available research evidence with clinical expertise and patient values.

At issue in this case was the 2009 Guideline, which was applied by the IMR reviewer to determine the medical necessity of the RFA for home healthcare aid.

The guideline provided that medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health care aides like bathing, dressing and using the bathroom when this is the only care needed.

The WCAB concluded that the Independent Medical Review determination upholding the denial of the request for a home health aide was adopted without authority by the administrative director because the portion of the 2009 medical treatment utilization schedule/chronic pain medical treatment guideline applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long-standing worker’s compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury. (Smyers v. WCAB, 49 CCC 454).

Therefore, the WCAB concluded that the 2009 guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by the applicant.

Because the guideline is contrary to California law and is invalid, the presumption of correctness could not apply.

Once the Guideline was found invalid, the WCAB than noted that the requested treatment may be authorized based on recommendations outside of an MTUS guideline where the MTUS presumption of correctness has been controverted by a preponderance of scientific medical evidence establishing that the treatment is reasonable necessary to cure or relief from the effects of the industrial injury.

The WCAB further noted that in the review of the utilization review decision, expert opinion may be considered in the determination of whether a requested mode of treatment is medically necessary.

In this case the IMR determination relied on a guideline that is invalid and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment.

The WCAB concluded that the administrative director exceeded her authority when she adopted the IMR determination in this case.

Because this conclusion is contrary to the WCJ’s finding that the administrative director had not exceeded her authority when she adopted the IMR determination, the WCAB rescinded the WCJ’s finding an order denying applicants IMR appeal and returned the matter to the trial level for further proceedings in accordance with the decision.

The WCAB further noted that in this case the medical evidence supporting the applicant’s need for home healthcare appears to be compelling. Nevertheless, the appeals Board was precluded from determining the medical necessity of a home healthcare need in this case.

On remand to the WCJ the WCAB recognized that the 2009 guideline has been revised since the court issued its decision in this matter, and the current guideline includes home healthcare services. However, the scope of the Board’s determination is limited to the present record and the 2009 guideline, as it is the version that applied in the proceedings below and reviewed by the court.

While the WCAB did not consider the merits of the effect of the current guideline, they recognize that it may be applied by a different IMR reviewer in the event there is a remanded to the administrative director.

The WCJ may determine whether further hearing is necessary on issues not reached herein, and can consider whether, given the passage of time, further development of the record may be necessary. In the event the WCJ finds that the administrative director determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to Labor Code §4610.6(i).

Baker v. Workers’ Compensation Appeals Board (Court of Appeal unpublished, Third District Court of Appeal) (____CCC_____):

The Court agreeing with the Appeals Board majority in the case and the Court of Appeal case in Stevens concluded the the 30-day time limit in Lab. § 4610.6(d) for IMR review is directory and not mandatory, therefore, an untimely IMR determination is valid and binding on the parties.

The Third District Court of Appeal’s unpublished opinion is practically a restatement of the published opinion issued by the Second District Court of Appeal in State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2016) (81 Cal.Comp.Cases 561).  In that decision, the Court of Appeal concluded (1) the 30-day time limit in Lab. Code section 4610.6(d) is directory, so an untimely IMR determination is valid and binding upon the parties as the final determination of the director; and (2) an injured worker may bring a petition for writ of mandate to compel the Administrative Director of the DWC to issue an IMR determination.

Payne V. Federal Express (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 243):

 

The WCJ issued a finding that they lacked jurisdiction to award medical treatment in the form of an extension of what a weight loss program because applicant had triggered the Independent medical review process by seeking utilization review of a denial of medical treatment and therefore was required to resolve the process by the UR/IMR process even though the parties that entered into a Compromise and Release Agreement in 2003 wherein they agree to utilize an Agreed Medical Evaluator, Mark Mandel M.D., to determine medical necessity for applicants claimed industrial treatment including weight loss.

The WCAB reversed the WCJ adopting the analysis set forth in the panel decision in Bertrand (2014 Cal. Wrk. P.D. LEXIS 243).  In that case the WCAB concluded that the terms of the parties’ compromise and release are not vitiated by the new UR/IMR provisions because the terms of a binding settlement agreement cannot be invalidated by subsequent statutory changes.

In addition, the appeals Board ruled the applicant did not waive his right to enforce the terms of the settlement by pursuing UR/IMR.

The WCAB addressed the issue of the Stevens case and noted the party’s agreement in this case to use an Agreed Medical Evaluator to resolve medical disputes was consistent with the underlying purpose of UR/IMR statutory changes discussed in Stevens because it obviated need to litigate future medical treatment disputes through more protracted IMR review and appeal processes.

Parrent v. WCAB (W/D) (45 CWCR 63):

Applicant sustained an industrial injury to his bilateral upper extremities and settled his worker’s compensation claim by a Stipulation for 64% permanent disability and future medical treatment.

A physician within the employer’s MPN diagnosed applicant and submitted a request for authorization for prescription and topical medications.

A utilization review physician approved one month of the medication to applicant and to taper off the medication and disallowed the second medication.

The injured worker requested independent medical review and the reviewer concluded the treatment was not medically necessary.

Applicant filed a declaration of readiness to proceed for a hearing and challenge that the UR decision was invalid because it was reviewed under Labor Code §4610 UR/IMR rather than 4616 (f) (scope of license).

The Workers Compensation Judge ruled, following a hearing, that because the parties had stipulated UR had been timely, the WCAB lacked jurisdiction to address the disputed medical issue, which could proceed through the IMR process. The Workers Compensation Judge further ruled that applicant’s participation in defendant’s MPN does not preclude defendant referring an RFA to UR. Applicant filed a petition for reconsideration.

The WCAB rejected applicant’s contention that an insurer or permissibly self-insured employer is not entitled disputed medical treatment recommendation from a physician in the MPN to which it had referred applicant for treatment, but must authorize any recommendations submitted by the MPN physician.

The MPN system provides an injured worker who disputes the diagnosis or treatment recommendations MPN treating position selected by the employer or a worker-selected treating physician after the first visit with an employer-selected MPN physician, a mechanism to obtain a second, even third, opinion from other MPN physicians consistent with Labor Code §4616(f) provision. They still dissatisfied worker, and after having obtained second and third opinions within the MPN, may request, pursuant to Labor Code §4616.4(b), that the dispute be submitted to an independent medical review physician within the MPN.

Pursuant to Labor Code §4610, an employer or insurer that questions the treating physician’s treatment recommendations must pursue its establish UR process, subject IMR, only if the injured worker has disputed UR determination.

Commissioner Swayze, concurring, emphasized that by the employer having submitted a dispute over its MPN physician’s treatment recommendation to UR, an injured worker is not precluded from initiating Labor Code §4616.3 second opinion process, or from changing treating physician within the MPN by the employer having submitted a dispute over its MPN physician’s treatment IMR. That is the injured worker disputes the treatment recommended by an MPN treating physician may initiate (1) the usual UR/IMR process or (2) 4616.3 second and third physician process and, if dissatisfied with those physician’s conclusions, then request the MPN/IMR process.

The court in the Writ denied opinion concluded that the worker had pointed nothing in the UR statue or their legislative history that showed an employer’s dispute of the treatment recommendation made by a physician and its MPN is exempt from UR under section 4610. The court concluded that nothing in the end and statute suggest that an employer is exempt from UR if it disputes the treatment recommendations made by a physician within its MPN.

The Supreme Court denied review as well as the Court of Appeal.

 

Swengel v. Cambridge (BPD) (45 CWCR 38):

Applicant’s claims were settled by Stipulations with Request for Award for 43% permanent disability with the right of future medical treatment.

Applicant psychologists initially recommended a gym membership which defendant authorized. Since the initial authorization the applicant attended the gym 5 to 6 days per week to engage in pool exercises including water aerobics and swimming.

According to the applicant, gym membership greatly benefited her as she lost 40 to 50 pounds since the time was authorized and the other activities are not as effective because they caused her feet to swell.

Applicant’s primary treating physician stated that the use the gym membership reduced her need for medications and possibly contributed to her health.

An RFA issued in 2014 from applicant’s primary treating physician for a three-month gym membership which was denied by UR on the ground that applicant’s diabetes was not an industrial condition.  Defendant then stipulated to authorize the gym membership for those three months.

In November 2015 the primary treating physician filed an RFA for an extension of the gym membership. The UR denied the request on the grounds there was no evidence that applicant could not perform the whole exercise program or why she needed a pool. The denial also stated the gym memberships and pools would not generally being considered medical treatment and therefore not covered by the guidelines.

Instead of petitioning for IMR applicant filed a petition to enforce her award and for penalties against defendants for failing to authorize the gym membership.

The matter proceeded to trial and the WCJ ruled that submission of the RFA to UR had been improper, observing that the administrative director had, in a separate case, stated the gym memberships are not subject to IMR and that, absence of change in material circumstances, defendant could not discontinue the gym membership.

The WCJ awarded applicant attorney fees for enforcing the medical award but not penalties. Defendant filed a petition for reconsideration.

The WCAB ruled that the WCJ did not have jurisdiction to review a timely UR denial of a gym membership.

Labor Code §4600 defines medical treatment as including services that are recommended by the treating physician as medically necessary to cure or relieve the effects of industrial injury, even if not provided by a medical professional. Cases held a weight loss clinic, housekeeping services and other indirect healthcare services fall within the scope of Labor Code §4600.

The WCAB help water aerobics and a gym membership are considered to be medical treatment pursuant to Labor Code §4600.

The Board then went on to state that having determined the dispute was subject to UR, there was no dispute regarding the timeliness of the UR determination or that applicant had not filed an IMR repeal.

The WCAB distinguished Patterson (79 CCC 910), because in that case defendant unilaterally terminated home healthcare services without submitting that request to UR, but in the instant case to find defendant is obligated to establish a change in circumstances before it can obtain UR is misplaced.

In this case defendant properly submitted the RFA to UR and UR’s non-certification triggered the IMR appeals process.

Prior authorization for gym memberships were for finite periods of time and those finite authorizations did not bind defendants to approve gym memberships indefinitely. The WCJ had no jurisdiction to determine the reasonable medical necessity the gym membership.

The WCAB stated there was no basis for the Appeals Board to invalidate the UR determination and they find no support for applicant’s contention that she is entitled penalties.

The WCAB overturned the WCJ’s determination that applicant was entitled to a gym membership and instead ruled that the WCJ did not have jurisdiction to hear the dispute because there was a timely determination that was properly subject to UR.

Rodriguez v. Simi Valley Unified School District (BPD) (2017 Cal. Wrk. P.D. LEXIS 671) ( 45 CWCR 19):

The treating physician submitted an RFA for a home health-care evaluation and to a request for home health-care services.

The treating physician requested an evaluation regarding home health-care assistance that was denied by UR.

Parties disputed whether an evaluation regarding home healthcare assistant was subject to utilization review.

The WCAB found that Labor Code §4600(h) requires that home healthcare should be treated like any other form of treatment. The WCAB found no distinction between the UR requirements for an evaluation for medical treatment and actual provision of medical treatment.

The WCAB concluded that because the requested evaluation of home health-care assistants constituted medical treatment, it was subject to the UR process.

Labor Code §4610, which defines medical treatment and the scope of UR, respectively, section 4600 contains a broad definition of medical treatment, referring to many treatment modalities that are reasonably required to cure or relieve the injured worker from the effects of the industrial injury. Moreover, 4600 specifically addresses home healthcare services and does not differentiate it from other forms of medical treatment.  Labor Code §4610 applies to medical treatment requests made pursuant to 4600 and uses the same medical necessity languages 4600.

A request for home health-care evaluation comes logically within the plain language of the statute with their inclusion of home healthcare and medical necessity.

To differentiate, from treatment request, evaluative requests, such as for X-Rays -not in and of themselves treatment for any medical condition would place them outside the scope of UR. There have been numerous determinations that medical imaging and certain specialist evaluations to determine scope of treatment are subject to UR.

In sum, determining whether this proposed regime (home healthcare) is appropriate is no less medical treatment than actual implementation of the regimen itself.

Further, since the request was subject to UR and UR timely denied it, IMR became the dispute resolution mechanism in the WCJ lacked jurisdiction to address the dispute.

The WCAB in a footnote to the decision indicated that a home health-care evaluation could be a medical legal expense, rather than treatment, but did not believe the request at issue was a medical-legal expense.

 

Schendel V. B & B Sales (BPD) (45 CWCR 41):

Applicant sustained an industrial injury to his knees and back in July 1998.  Applicant entered into a stipulation to 45% PD with the right to future medical treatment.  Applicant filed a petition to reopen.

Applicant entered into a a second stipulation which also provided for future medical treatment per the reports of two Agreed Medical Evaluators.

Applicant’s primary treating physician submitted a request for medical treatment (RFA) for various drugs he previously prescribed.

Defendants submitted the RFA to you are which certified one of the drugs but denied certification of two others.

And IMR upheld the denials.

At an expedited hearing the applicant questioned defendant’s right to submit the RFA to UR. The parties agreed to have the AME in orthopedic surgery review the UR denials and prepare a medical report. The physician did not reevaluate the applicant who he had previously examined 2003, but indicated that two drugs should be provided.

The WCJ then determined that defendant was obligated to provide the prescription medications because of the Stipulation that had previously entered into and that defendant waived the UR/IMR procedure, the parties having agreed to submit the UR denials to the Agreed Medical Evaluator.

Defendant contended that the submission to the AME had been for review, not for determination, and filed a petition for reconsideration arguing the WCJ lacked jurisdiction over the medical treatment issue because there was a timely UR denial upheld by IMR. The defendants argued the prior stipulation did not constitute a waiver. Defendants also argue that because prescription drugs are for finite periods they should not be treated as other more indefinite forms of medical treatment. Finally, defendant argued the AME’s report did not rebut the MTUS.

The WCAB ruled that defendants agreed to submit the UR denial to the Agreed Medical Evaluator and report regarding the necessity prescription drugs.

The WCAB cited the case of Bertrand v. County of Orange (42 CWCR 201) in which the Board held that the IMR process for reviewing a UR denial of medical treatment may be Agreed Medical Evaluator and that once the medical treatment dispute arose through the UR denial, defendant agreed to return to the agreed Medical Evaluator resolve the issue.

The WCAB majority did not discuss defendant’s argument regarding the allegation that the opinion from the AME did not satisfy the MTUS and substantial medical evidence standards.

The panel did not address the question of whether a change in circumstances existed, instead relying on the Stipulation and the January 6, 2016 minutes of hearing to rule that applicant was bound to follow the opinion of the Agreed Medical Evaluator.

The WCAB majority denied defendant’s petition for reconsideration and upheld the judges award of the prescription medication and its accordance with the report of the Agreed Medical Evaluator.

A dissenting Commissioner agreed that defendant was bound to submit the medical treatment dispute to the Agreed Medical Evaluator, but declined to agree that the majority opinion was sufficient to support a finding of reasonable medical necessity under the MTUS.  The Commissioner deemed the AME’s opinion was not based on substantial medical evidence and not in compliance with the MTUS guidelines, which would have required the AME to re-evaluate applicant, review all the inter medical reports, and expressly addressed whether the prescription met the guidelines. She noted the AME said he would need to review a fuller version of applicant’s pain management records to make more specific recommendation on the need for medications.

The majority did not deal with the issue if the parties had to return to the AME based on the Stipulated award but ruled only on the stipulation agreed to at the hearing and contained in the minutes of the hearing.

Juan Rivas, Applicant v. North American Trailer (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 572)

The WCAB ruled that applicant properly designated Kenneth K. Wogensen, M.D., employed by Casa Colina Transitional Living Center (Casa Colina), as his primary treating physician within defendant’s MPN,

Dr. Wogensen was not listed as individual physician in MPN, however Casa Colina was listed as being within the employers MPN.

The WCAB held that applicant was entitled to medical treatment requested by Dr. Wogensen to cure or relieve effects of his 10/16/2015 admitted injury to his head, brain, neck, ears, and eyes, including 60 days of post-acute physical rehabilitation at Casa Colina.

The WCAB concluded that Casa Colina was listed in defendant’s MPN, and the WCAB reasoned that under Labor Code §4616(a)(3) and 8 Cal. Code Reg. § 9767.5.1, medical groups may be members of MPN and may employ services of physicians who do not register individually with MPN, such as Dr. Wogensen.

The applicant’s designation of Dr. Wogensen as his primary treating physician specifically referred to Casa Colina, and evidence established Dr. Wogensen, in rendering treatment to applicant, acted only through Casa Colina and not in his capacity as individual physician,

The WCAB rejected defendant’s assertion that Casa Colina was hospital that could only provide treatment upon referral from individual member of MPN.  The WCAB stated this allegation was contradicted by description of Casa Colina in defendant’s MPN listing stating that Casa Colina was in the MPN for purpose of providing inpatient and outpatient treatment in areas that expressly included rehabilitation from brain injury, and that no referral was required for this kind of treatment;

The WCAB found that since Dr. Wogensen was properly designated treating physician, defendant was required to conduct utilization review under Labor Code §4610 before denying authorization for treatment requested by Dr. Wogensen.

Because defendant failed to do so, WCAB had jurisdiction to decide medical dispute, and that reports of Dr. Wogensen and Dr. David R. Patterson, M.D., another Casa Colina physician who treated applicant, were substantial evidence to support award of requested treatment.

Esperanza Sanchez v. Dunlap Manufacturing Inc. (BPD) 2016 Cal. Wrk. Comp. P.D. LEXIS 407):

The WCJ found that defendant did not timely serve utilization review (UR) decision pursuant to timeframes in Labor Code §4610(g)(1) and (g)(3)(A), and 8 Cal. Code Reg. § 9792.9.1(e)(3), which require that UR decision be timely made and timely communicated.

The WCAB agreed with the WCJ who found the UR determination was not timely communicated when the determination was sent to the applicant and the requesting physician within specified timeframes, but was not served on applicant’s attorney pursuant to 8 Cal. Code Reg. §10510.

However, the WCAB rejected the WCJ’s conclusion that defendant’s failure to serve copy of request for authorization (RFA) on applicant attorney created adverse inference that RFA established reasonableness and necessity of medical treatment in form of corticosteroid injection to applicant’s right wrist and eight sessions of physical therapy.

The WCAB concluded that the only medical evidence on record in this case addressing reasonableness and necessity of requested medical treatment was copy of defendant’s UR decision.

The WCAB held that even if defendant does not timely complete UR, injured employee must still prove that requested treatment is medically reasonable and necessary by demonstrating that treatment request is consistent with uniform guidelines or, alternatively, rebutting application of guidelines with preponderance of scientific medical evidence,

Although an RFA is a medical report and should have been served on counsel, there was no evidence that defendant’s failure to serve RFA, or produce a copy of RFA at trial in this case, constituted willful suppression of evidence, and that without any evidence to indicate whether defendant willfully suppressed production of evidence and absent evidence regarding whether requested medical treatment was reasonable and necessary, further proceedings at trial level were necessary.

Weimer v. Hillyard Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 104) (45 CWCR 73):

The treating physician submitted an RFA for various medications with an incorrect claim number.

The claims administrator sent the RFA to the treating physician marked “INCOMPLETE request for MED” and indicated the claim number was incorrect.

The WCAB ruled that rule 9792.6 .1 (t) does not require the inclusion of a claim number, but the Appeals Board added that it would be prudent to include an accurate claim number in every RFA to effectively identify the employee.

The WCAB found that while the RFA included an inaccurate number, the claims adjuster correctly identified the employee and claim number on the day the RFA was received. Because the RFA successfully identify the employee to the claims administrator, the defendant received information reasonable and necessary to make the determination when it receives the RFA form.

The Appeals Board found the UR determination to be on timely giving the WCAB jurisdiction to cite the medical issue.

Puente v. Napa Valley Unified School District (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 100):

The WCJ found that a defendant’s MPN was inadequate and did not meet the minimum access standards because there were only two pain management doctors within 30 minutes or 15 miles of applicant’s residence or workplace.

Defendant filed a Petition for Reconsideration.

The WCAB found that the rules provided different access standards depending on whether the care is provided by a “primary treating physician” or by a “specialist”.

The WCAB indicated that the MPN must provide a list of at least three physicians competent to treat injuries commonly experienced by employees. They must be identified through their provider code is primary treating physicians willing to serve in that role, and they must be within the 15 mile/30-minute radius mandated by rule 9767.5 (a) (1) of the applicant’s residence or workplace.

If the applicant selects a physician who is identified as a specialist, but who is not listed his or her availability as a primary treating physician, the greater access standards for 30 miles and 60 minutes for specialist will apply pursuant to rule 9767.5 (a) (2).

The WCAB added that defendant was not obligated to have three pain management specialists within the closer radius in the access standards, but the MPN must have, within 15-mile/30-minute radius, three physicians with an appropriate specialty to provide ongoing primary care for the applicant’s injury and are willing to serve as her primary treating physician.

If a physician who is not trained in the applicant’s preferred specialty or subspecialty is selected as the primary treating physician, and he or she identifies the need for additional care from a specialist, the MPN must provide an adequate selection of appropriate specialists within a 30-mile/60-minute radius of the applicant’s residence or workplace, or the MPN must permit the applicant to seek care outside the MPN.

The WCAB remanded the matter for the WCJ to determine whether the defendant’s MPN met the access standards for selection of a primary treating physician with an appropriate specialty to treat applicant’s industrial injury.

 

 

Mata v. Supermercado Mi Tierra (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 166):

 

The WCJ found that the applicant suffered an industrial injury to his neck, back, and on April 15, 2016 was entitled to cervical fusion surgery approved bind defendant’s utilization review process.

Defendant filed a Petition for Reconsideration.

The WCAB agreed with the WCJ.

The WCAB found no merit to defendant’s contention that deferral of the utilization review approved neck surgery was appropriate based on the fact defendant was contesting whether the need for cervical fusion was caused by applicant’s industrial injury to his neck or pre-existing condition.

Because defendant did not act timely within the five-day time frame (§9792.9 .1(b) (1)) to defer liability for the recommended treatment, once the defendant decides to proceed with utilization review rather than defer, they cannot later to decide to delay medical treatment approved by the utilization process that it is disputing industrial injury.

Because defendant in this case accepted liability for applicant’s neck and the recommended surgery was certified by utilization review there was no basis for den defendants failed surgery.

De La Garza  v. Roll Global/Del Rey Juice Plant dba POM Wonderful (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 61):

 

The WCJ issued an order directing defendant to authorize surgical treatment recommended by applicant’s primary treating physician because surgical treatment was certified by a June 3, 2016 utilization review and the WCJ found no justification for defendant’s withdrawal of the utilization review certification on the basis the same treatment had been denied by utilization review on May 20, 2016 because that denial was effective for 12 months absent change in material facts relating to applicant’s condition based on Labor Code §4610(g)(6) and Reg. 9792.9 (o).

The WCAB affirmed the WCJ based on the fact the first request for treatment was made on the mistaken belief that the requested treatment was solely for cosmetic purposes and was not supported by the MTUS, however the treatment was subsequently certified by the physician clarifying the procedure was not cosmetic purposes, but was rather required to alleviate pain so he skated with applicant’s burn injury and to restore functionality to his arm.

The WCAB reasoned that with respect to whether the new utilization review issued within 12 months was valid, the WCAB indicated that the meaning of the phrase “a documented change in the facts material to the basis of the utilization review decision” that to the extent the physician’s initial utilization review was premised upon incorrect assumption as to purpose surgery, there was a documented change in facts material to the basis for the UR decision.

When the physician was made aware of the mistaken belief by receiving a report from the primary treating physician and a new RFA was issued, that even assuming the resubmitted RFA is not technically proper because one-year had not yet expired, there is nothing that prohibits the claims adjuster from accepting and acting on a utilization review that is resubmitted prior to such expiration, and that, here the claims adjusters decision to treat the RFA as a proper request for treatment and submitted to utilization review was consistent with the overreaching legislative purpose in enacting the utilization review process “to ensure quality, standardized medical care for workers in a prompt and expeditious manner”, and to allow the physician, rather than the claims adjuster to make decisions regarding injured workers medical treatment.

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