What the panel ordered
The WCAB affirmed the Findings and Order except it amended the order to find that the MPN-IMR report from Dr. Michael Smith is substantial evidence that applicant is entitled to left hip surgery as a diagnostic procedure; Dr. Smith cannot address causation or medical need on an industrial basis; and Dr. Smith's report may not be sent to QME Dr. Charles Roland for review.
Petition for Reconsideration and/or Removal filed by applicant to review the Findings and Order issued by the WCJ on October 4, 2021, regarding medical treatment and causation issues related to left hip surgery.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The MPN-IMR physician's report is substantial evidence for the need for left hip surgery as a diagnostic procedure, but the MPN-IMR physician cannot address causation or medical necessity on an industrial basis, and the report may not be sent to the QME for review.
From the decision · page 2F&O except that we will amend the F&O to find that the report from Michael D. Smith, M.D., is substantial evidence that applicant is in need of and is entitled to the left hip surgery as a diagnostic procedure (Finding of Fact #4); that Michael D. Smith, M.D., cannot address the medical need for the left hip surgery on an industrial basis (Finding of Fact #5); and that the report from Michael D. Smith, M.D., may not be sent to QME, Dr. Charles Roland for his review (Finding of Fact #6).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The AD adopted Dr. Smith's MPN-IMR report finding the left hip excision/biopsy surgery medically necessary as a diagnostic procedure.
Favours Applicant prevailed
The AD's determination is binding and presumed correct, so the WCAB must affirm the entitlement to surgery.
From the decision · page 3The diagnoses were "Soft tissue mass left hip, probable lipoma (nonindustrial)" and "Lumbar radiculopathy status post lumbar spine surgery (2011 injury)." (Joint Exh. 103, Michael D. Smith, M.D., May 24, 2021, p. 47.) Regarding applicant's medical treatment, Dr. Smith stated, "The patient needs to go to LAC/USC Hospital or privately to have excision of lipoma, left hip, by an orthopaedic oncologist on a nonindustrial basis." (Joint Exh. 103, p. 47.) The AD adopted Dr. Smith's May 24, 2021 report on June 7, 2021. (Joint Exh. 104, George Parisotto, June 7, 2021, Adoption of Medical Provider Network Independent Medical Review Determination.)
Dr. Smith's opinion that the left hip mass is nonindustrial and should be treated on a nonindustrial basis is inconsistent with Labor Code section 4616.4(b) and is not considered evidence.
Favours Defendant prevailed
This limits the scope of the MPN-IMR physician's authority and affects the causation and medical necessity findings.
From the decision · page 4The language of section 4616.4 (b) is quite clear that an MPN/IMR evaluation pertains only to "disputed treatment or diagnostic service still in dispute." Therefore, the MPN-IMR physician is not to address the cause of the injured worker's condition. (See Simmons v. State of California, Department of Mental Health (2005) 70 Cal.Comp.Cases 866 (Appeals Board en banc).) As noted above, in his report Dr. Smith stated that the issues he was told to address included whether applicant's left hip condition was "industrially caused." (Joint Exh. 103, p. 8.) The doctor's statement is inconsistent with the limitations of the issues to be addressed as identified in section 4616.4 (b). Thus, his opinion that applicant's left hip soft tissue mass/lipoma is "nonindustrial" and should be treated "on a nonindustrial basis" is not evidence and will not be considered. However, his opinion that applicant should undergo an excision/biopsy of the left hip mass/lipoma is consistent with the diagnosis of "probable lipoma." Clearly the excision/biopsy is a diagnostic procedure, necessary to determine the nature of, and the proper medical treatment for, the left hip soft tissue mass. The doctor's report constitutes evidence that the excision/biopsy is a necessary diagnostic test regarding the actual nature of applicant's left hip condition.
QME Dr. Roland cannot address disputed medical treatment issues and therefore should not review Dr. Smith's MPN-IMR report.
Favours Defendant prevailed
This prevents duplication of medical review and respects regulatory limits on QME authority.
From the decision · page 4As discussed above, the proper subject for Dr. Smith to address was whether applicant should undergo the left hip surgery she was requesting. He clearly stated that applicant should have excision/biopsy of the left hip lipoma. (Joint Exh. 103, p. 47.) That is a disputed medical treatment issue and as such cannot be addressed by QME Dr. Roland. Based thereon, there is no reason to have Dr. Roland review Dr. Smith's report.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Smith's report states that the applicant needs excision/biopsy of the left hip mass as a diagnostic procedure but that the mass is nonindustrial and the medical need cannot be addressed on an industrial basis.
Dr. Smith's opinion on causation is inconsistent with Labor Code section 4616.4(b) and is not considered; however, his opinion on the need for excision/biopsy as a diagnostic procedure is substantial evidence for medical treatment.
From the decision · page 4The language of section 4616.4 (b) is quite clear that an MPN/IMR evaluation pertains only to "disputed treatment or diagnostic service still in dispute." Therefore, the MPN-IMR physician is not to address the cause of the injured worker's condition. (See Simmons v. State of California, Department of Mental Health (2005) 70 Cal.Comp.Cases 866 (Appeals Board en banc).) As noted above, in his report Dr. Smith stated that the issues he was told to address included whether applicant's left hip condition was "industrially caused." (Joint Exh. 103, p. 8.) The doctor's statement is inconsistent with the limitations of the issues to be addressed as identified in section 4616.4 (b). Thus, his opinion that applicant's left hip soft tissue mass/lipoma is "nonindustrial" and should be treated "on a nonindustrial basis" is not evidence and will not be considered. However, his opinion that applicant should undergo an excision/biopsy of the left hip mass/lipoma is consistent with the diagnosis of "probable lipoma." Clearly the excision/biopsy is a diagnostic procedure, necessary to determine the nature of, and the proper medical treatment for, the left hip soft tissue mass. The doctor's report constitutes evidence that the excision/biopsy is a necessary diagnostic test regarding the actual nature of applicant's left hip condition.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4616.4
MPN independent medical review pertains only to disputed treatment or diagnostic service still in dispute after the third physician's opinion (Lab. Code, 4616.4(b)).
The MPN-IMR physician cannot address causation, only disputed treatment or diagnostic service.
From the decision · page 3DISCUSSION We first note that pursuant to section 4616.4:
Cal. Code Regs., tit. 8, 35.5 (g) (2)
An Agreed Medical Evaluator or Qualified Medical Evaluator shall not provide an opinion on any disputed medical treatment issue, but shall provide an opinion about whether the injured worker will need future medical care to cure or relieve the effects of an industrial injury (Cal. Code Regs., tit. 8, 35.5 (g) (2)).
QME Dr. Roland cannot address disputed medical treatment issues such as the need for left hip surgery.
From the decision · page 4Next, regarding the issue of whether QME Dr. Roland should review and consider the report from Dr. Smith, DIR rule 35.5 states:
Labor Code section 4610.6
The determination of the administrative director adopting the MPN-IMR report is binding and presumed correct; the Appeals Board cannot make a determination of medical necessity contrary to it (Lab. Code, 4610.6).
The AD's determination that the applicant is entitled to left hip surgery is binding and not subject to appeal by the WCAB.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Smith's report is substantial evidence that the excision/biopsy is a necessary diagnostic test for the left hip mass.
From the decision · page 4The language of section 4616.4 (b) is quite clear that an MPN/IMR evaluation pertains only to "disputed treatment or diagnostic service still in dispute." Therefore, the MPN-IMR physician is not to address the cause of the injured worker's condition. (See Simmons v. State of California, Department of Mental Health (2005) 70 Cal.Comp.Cases 866 (Appeals Board en banc).) As noted above, in his report Dr. Smith stated that the issues he was told to address included whether applicant's left hip condition was "industrially caused." (Joint Exh. 103, p. 8.) The doctor's statement is inconsistent with the limitations of the issues to be addressed as identified in section 4616.4 (b). Thus, his opinion that applicant's left hip soft tissue mass/lipoma is "nonindustrial" and should be treated "on a nonindustrial basis" is not evidence and will not be considered. However, his opinion that applicant should undergo an excision/biopsy of the left hip mass/lipoma is consistent with the diagnosis of "probable lipoma." Clearly the excision/biopsy is a diagnostic procedure, necessary to determine the nature of, and the proper medical treatment for, the left hip soft tissue mass. The doctor's report constitutes evidence that the excision/biopsy is a necessary diagnostic test regarding the actual nature of applicant's left hip condition.
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