ADJ11092501 — California WCAB decision

ADJ11092501 · March 22, 2022

The WCAB affirmed the WCJ's December 30, 2019 Findings and Award, holding that defendant's UR determination was untimely and invalid, and that applicant is entitled to continuing outpatient rehabilitation services until no longer reasonably required.

Issues decided

Medical opinions weighed

Authorities named

District office

Van Nuys

What the panel ordered

Defendant sought reconsideration of the Findings and Award issued by a WCJ on December 30, 2019, which found applicant sustained an industrial injury and awarded continuing outpatient rehabilitation services due to defendant's improper service of the UR determination.

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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.

Medical treatment / UR / IMRApplicant prevailedhead · brain

The WCJ and WCAB found that defendant's UR determination was untimely and invalid, giving the WCAB jurisdiction to determine medical necessity. Substantial medical evidence, including Dr. Patterson's reports and team conference notes, supported the need for continuing outpatient rehabilitation until no longer reasonably required.

From the decision · page 1We granted reconsideration to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Defendant sought reconsideration of the Findings and Award issued by a workers' compensation administrative law judge (WCJ) on December 30, 2019. The WCJ found that applicant, while employed on October 13, 2017, as a production line worker, sustained an admitted industrial injury to her head and brain. The WCJ also found that defendant's improper service of the Utilization Review (UR) determination renders it invalid, and the determination of medical necessity for the treatment may be made by the Appeals Board. The WCJ found defendant is liable for continuing applicant's outpatient physical rehabilitation, consisting of transitional living center day treatment, transportation, and interpreter services, until they are no longer reasonably required pursuant to Labor Code section 4600.1

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Dubon II)

If a UR decision is untimely, it is invalid and not subject to IMR; the Appeals Board has jurisdiction to determine medical necessity.

The WCJ correctly determined the UR was invalid due to untimely service and exercised jurisdiction to award continuing treatment.

From the decision · page 4In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if a UR decision is untimely, the UR decision is invalid and not subject to independent medical review (IMR). The Dubon II decision further held that the Appeals Board has jurisdiction to determine whether a UR decision is timely. (Id.) If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board. (Id. at p. 1300.) Subsequent to Dubon II, in a significant panel decision, the Appeals Board held that a UR decision that is timely made, but is not timely communicated, is untimely. (Bodam v. San Bernardino County/Dept. of Social Services (2014) 79 Cal.Comp.Cases 1519.)3 In this case, the WCJ correctly determined that the UR was

Labor Code section 4600

Medical treatment reasonably required to cure or relieve the injured worker from the effects of the injury must be provided under Labor Code section 4600.

The WCJ and WCAB found substantial medical evidence supported continuing outpatient rehabilitation as reasonable and necessary treatment.

From the decision · page 5The WCJ properly exercised his jurisdiction over this matter, yet applicant is not automatically entitled to the requested treatment. Applicant must still meet her burden to prove the treatment she requested is medically necessary. (Lab. Code § 5705, 3202.5.) "[A]ll parties, including injured workers, must meet their burden of proof on all issues by a preponderance of the evidence." (Sandhagen v. Workers' Comp. Appeals Bd. (2008) 73 Cal. Comp. Cases 981, 990.) To carry this burden, the injured worker must present substantial medical evidence. (Dubon II, 79 Cal. Comp. Cases at 1312.) Section 4600 requires a defendant to provide medical treatment "reasonably required to cure or relieve the injured worker from the effects of his or her injury" if there is a medical recommendation or prescription that there is a "demonstrated medical need" for such services." (Smyers. V. Workers' Comp. Appeals Bd. (1984) 49 Cal. Comp. Cases 454, 458.)

Patterson v. The Oaks Farm, 79 Cal. Comp. Cases 910 (2014)

Unilateral termination of medical treatment previously authorized as reasonably required is contrary to Labor Code section 4600 unless supported by substantial medical evidence.

The WCJ and WCAB applied Patterson to hold that continued treatment is required absent a change in condition or circumstances.

From the decision · page 7In addition to the substantial medical evidence supporting an ongoing need for applicant's continued rehabilitation program, we are persuaded that Patterson also supports the Award of medical treatment in this case. The evidence does not indicate that applicant has improved sufficiently in her cognitive abilities and emotional state so that she no longer requires the outpatient rehabilitation program. (Defendant's Exhibit A.) The outpatient treatment requested for this catastrophically injured applicant is medically necessary, absent a change in circumstances.

ADJ11092501 · March 22, 2022

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