ADJ11584131 · June 28, 2024

The WCJ and Appeals Board found the opinions of Dr. Bradley Thomas and Dr. Peter Gleiberman to be substantial medical evidence supporting the reasonableness and necessity of the lumbar surgery, while rejecting the untimely UR denial and IMR denial as not substantial evidence. Applicant's credible testimony and consistent medical records supported the surgery request.

From the decision · page 1Preliminarily, we note that defendant does not challenge the WCJ's finding that the utilization review (UR) denial letter dated October 2, 2023 of the September 19, 2023 Request for Authorization (RFA) was untimely. In 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). If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board based on substantial evidence. (Id. at pp. 1300; 1312.) In this case, the WCJ correctly determined that the September 19, 2023 Request for Authorization is reasonable and necessary.

The UR denial letter dated October 2, 2023 was untimely and invalid, so the UR decision was not subject to IMR

Favours Applicant prevailed

This allowed the Appeals Board to determine medical necessity based on substantial evidence, supporting the surgery request

From the decision · page 1Preliminarily, we note that defendant does not challenge the WCJ's finding that the utilization review (UR) denial letter dated October 2, 2023 of the September 19, 2023 Request for Authorization (RFA) was untimely. In 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). If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board based on substantial evidence. (Id. at pp. 1300; 1312.) In this case, the WCJ correctly determined that the September 19, 2023 Request for Authorization is reasonable and necessary.

Applicant's credible testimony was consistent with medical records showing ongoing lumbar symptoms and failure of non-invasive treatments

Favours Applicant prevailed

Supported the finding that lumbar surgery was reasonable and necessary

From the decision · page 6Pursuant to applicant's Declaration of Readiness (DOR) this matter was set for Expedited Hearing in which the record was opened on 03/25/2024. Applicant testified that he still had ongoing symptoms of low back pain on a daily basis that radiated down his left leg along with tingling and numbness (MOH/SOE p.4, line7 and p.6, line 1). He testified that if he is permitted to undergo a second lumbar spine surgery, he would do it, even if it provided only a little relief (MOH/SOE, p.6, lines 2-3). Applicant also testified that he did travel to London in May 2023 for seven days (MOH/SOE, p.6, line4). On the flight over, applicant got out of his seat to walk around the plane and stretch every one and a half hours (MOH/SOE, p. 6, lines 6-7). When he landed in London his back pain was the same as when the plane left Los Angeles (MOH/SOE, p.6, line 7). He testified that while walking around London he would sit down and take breaks (MOH/SOE, p. 6, lines 8-9). By the time applicant returned to Los Angeles from London his low back pain was the same as when he left for London (MOH/SOE, p. 6, lines 10-11).

Medical records consistently noted left leg radicular symptoms despite one erroneous report mentioning right leg symptoms

Favours Applicant prevailed

Undermined defendant's attempt to challenge applicant's credibility and supported the surgery necessity

From the decision · page 7First, defendant asserts at p. 2, lines 22-23 of their petition that the lumbar MRI report dated 03/02/2022 (Exhibit 5) states that applicant complained of right leg tingling along with low back pain as opposed to the left to undermine applicant's credibility. However, every other report in evidence clearly indicates that applicant has consistently complained of left lower extremity symptomatology. Some reports even noted bilateral radicular complaints into the legs. Here, defendant seizes upon an apparent typographical error in a misguided effort to impugn Applicant's veracity. Relying on a single erroneous reference to right leg symptoms to attempt to undermine applicant's credibility in the face of an avalanche of medical reports that, like applicant's testimony, overwhelmingly note left leg, if not bilateral, symptoms does not undermine Applicant's credibility. Instead, it undermines Defendant's.

Supports the reasonableness and necessity of lumbar surgery based on applicant's ongoing symptoms and failure of non-invasive treatments.

The WCJ and Appeals Board relied on Dr. Thomas's reports and testimony as substantial medical evidence supporting surgery.

From the decision · page 4applicant, sustained injury arising out of and in the course of employment to the lumbar spine, right shoulder and elbows (MOH/SOE, p. 2, lines 3-5). Dr. Pranay Patel performed a lumbar decompression procedure on Applicant on 08/18/2021 (Exhibit 20, pp. 6-7). Subsequent to this surgery, beginning in approximately October 2021, applicant complained to his primary treating physician, Dr. Bradley Thomas, that the temporary relief of symptoms from this surgery had dissipated and additional non-invasive treatments were initiated.

Supports lumbar surgery as reasonable and necessary, noting applicant's ongoing pain and failure of prior surgery and treatments.

The WCJ and Appeals Board gave substantial weight to Dr. Gleiberman's opinion supporting surgery.

From the decision · page 6The deposition of the orthopedic QME, Dr. Gleiberman occurred on 03/08/2024 (Exhibit E). In that deposition transcript the QME opined that if it were up to him, he would do additional hip testing before doing back surgery again (Exhibit E, p. 42, line 10). However, the QME also concedes that he is a hip specialist (Exhibit E, p. 37, line 6). The QME also mentions a study of 500 patients who all had hip replacements in which 80% noted resolved back pain one year post hip replacement surgery (Exhibit E, pp. 36, lines 12-20) to apparently support his opinion that hip issues should be addressed before doing low back surgeries. However, there was no specific citation for the study and no mention of whether any of these study subjects had a lumbar disc protrusion of at least 6 mm nor whether applicant had ever had a hip replaced. Overall, the QME expresses a preference that applicant undergo an injection procedure to the hip which may or may not indicate whether the hip or the low back is the "prime" pain generator (Exhibit E, p. 41, line 6-7).

Denied surgery based on unclear failure of physical therapy and lack of documented abnormal reflexes or sensations; opinion found not substantial evidence.

The WCJ and Appeals Board rejected Dr. Sheskier's opinion as arbitrary and not based on substantial evidence.

From the decision · page 8First, the opinion of the UR doctor, Dr. Sheskier, is based on an extraordinarily narrow criteria that does not appear to be tied to any evidence-based criteria. Dr. Sheskier's 10/02/2023 UR denial states that it is based on the flowing: (1) it was unclear whether physical therapy has failed; and (2) that there was no documentation of abnormal reflexes or sensations. This standard seems arbitrary particularly when compared to the rational and straightforward MTUS guidelines noted in the IMR Determination (Exhibit D) which require the following to be present:

Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc)

If a UR decision is untimely, it is invalid and not subject to IMR; medical necessity may be determined by the Appeals Board based on substantial evidence (Dubon II)

The WCJ and Appeals Board applied this standard to find the UR denial untimely and invalid, thus relying on substantial medical evidence for surgery necessity.

From the decision · page 1Preliminarily, we note that defendant does not challenge the WCJ's finding that the utilization review (UR) denial letter dated October 2, 2023 of the September 19, 2023 Request for Authorization (RFA) was untimely. In 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). If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board based on substantial evidence. (Id. at pp. 1300; 1312.) In this case, the WCJ correctly determined that the September 19, 2023 Request for Authorization is reasonable and necessary.

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]

Medical opinion must be based on adequate examination and history, not speculative, and must set forth reasoning (E.L. Yeager Construction v. Workers' Comp. Appeals Bd.)

The WCJ and Appeals Board applied this standard to evaluate medical opinions in the case.

From the decision · page 1A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]

Medical opinions are not substantial evidence if based on erroneous facts, inadequate histories, or speculation (Hegglin v. Workmen's Comp. Appeals Bd.)

The WCJ and Appeals Board applied this standard to reject opinions not supported by substantial evidence.

From the decision · page 2opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Applicant's credible testimony consistent with medical records

From the decision · page 6Pursuant to applicant's Declaration of Readiness (DOR) this matter was set for Expedited Hearing in which the record was opened on 03/25/2024. Applicant testified that he still had ongoing symptoms of low back pain on a daily basis that radiated down his left leg along with tingling and numbness (MOH/SOE p.4, line7 and p.6, line 1). He testified that if he is permitted to undergo a second lumbar spine surgery, he would do it, even if it provided only a little relief (MOH/SOE, p.6, lines 2-3). Applicant also testified that he did travel to London in May 2023 for seven days (MOH/SOE, p.6, line4). On the flight over, applicant got out of his seat to walk around the plane and stretch every one and a half hours (MOH/SOE, p. 6, lines 6-7). When he landed in London his back pain was the same as when the plane left Los Angeles (MOH/SOE, p.6, line 7). He testified that while walking around London he would sit down and take breaks (MOH/SOE, p. 6, lines 8-9). By the time applicant returned to Los Angeles from London his low back pain was the same as when he left for London (MOH/SOE, p. 6, lines 10-11).

Medical records consistently noting left leg radicular symptoms despite one erroneous report

From the decision · page 7First, defendant asserts at p. 2, lines 22-23 of their petition that the lumbar MRI report dated 03/02/2022 (Exhibit 5) states that applicant complained of right leg tingling along with low back pain as opposed to the left to undermine applicant's credibility. However, every other report in evidence clearly indicates that applicant has consistently complained of left lower extremity symptomatology. Some reports even noted bilateral radicular complaints into the legs. Here, defendant seizes upon an apparent typographical error in a misguided effort to impugn Applicant's veracity. Relying on a single erroneous reference to right leg symptoms to attempt to undermine applicant's credibility in the face of an avalanche of medical reports that, like applicant's testimony, overwhelmingly note left leg, if not bilateral, symptoms does not undermine Applicant's credibility. Instead, it undermines Defendant's.