ADJ12163448 — California WCAB decision

What the panel ordered

Decision of August 8, 2024 rescinded; matter returned to WCJ for further proceedings

Petition for Reconsideration granted, WCJ decision rescinded and matter returned for further proceedings

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 prevailedback · lumbar spine · cervical spine · right shoulder · right upper extremity

Defendant denied liability for the January 20, 2019 injury and did not offer medical treatment for that injury, allowing applicant to self-procure treatment. QME Dr. Nottage found the injury compensable, and defendant later stipulated to injury, making defendant liable for the self-procured treatment by Dr. Haghighinia.

From the decision · page 7We now turn to the issue of defendant's liability for the medical evaluation and treatment provided to applicant by Dr. Haghighinia.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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.

QMERelied upon · Orthopedics

Found applicant sustained injury on January 20, 2019, with apportionment of cervical spine impairment 90% to January 20, 2019 injury and lumbar impairment apportioned 70% to May 26, 2018 injury and 20% to January 20, 2019 injury.

QME found injury compensable and apportioned impairments between two injury dates, supporting liability for self-procured treatment after denial by defendant.

From the decision · page 4On August 2, 2019, QME Wesley M. Nottage, M.D., conducted an evaluation and issued a medical-legal report. Dr. Nottage's diagnostic impression is as follows: 1. Lumbar myofascial sprain

PTPRelied upon

Diagnosed cervical spine sprain/strain, cervical spine pain with right-sided upper shoulder myofasciitis, cervical spine pain radiculopathy to upper right shoulder and arm, lumbar spine sprain/strain with radiculopathy to right buttock. Could not determine if injury was re-injury or new injury to lumbar spine. Treated applicant after defendant denied liability for January 20, 2019 injury.

Applicant's attorney designated Dr. Haghighinia as PTP after defendant denied liability; treatment was self-procured due to denial; defendant liable for treatment costs.

From the decision · page 4On July 16, 2019, Dr. Haghighinia examined applicant and issued a Doctor's First Report of Occupational Injury and Illness for date of injury of January 20, 2019.2 (Exhibit 7, 7/16/2019, p. 1.) The report is prepared on a State of California Form 5021. Dr. Haghighinia diagnosed injury to applicant's cervical spine sprain/strain; cervical spine pain with right-sided upper shoulder myofasciitis; cervical spine pain radiculopathy to the upper right shoulder and upper right arm down to fingers; lumbar spine sprain/strain with radiculopathy to the right buttock area. He stated that he could not determine if the claimed injury was a re-injury and that he needed to review the previous doctor's records to determine if there was a re-injury or a new injury to the lumbar spine region. (Exhibit 7, 7/16/2019, p. 9.) With respect to the history of applicant's claimed injury, he reported that:

The rules the panel named

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

Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113

Lien claimant bears burden of proof to establish entitlement to reimbursement for medical treatment liens

Lien claimant must prove all elements of lien by preponderance of evidence

From the decision · page 7We first note that lien claimants hold the burden of proof to establish entitlement to reimbursement for medical treatment liens. (Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1115 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en banc).) This burden includes the burden to show that specific treatments and the charges for those treatments

Labor Code section 4600

Labor Code section 4600(a) requires employer to provide medical treatment reasonably required to cure or relieve effects of injury or reimburse employee if employer neglects or refuses to do so

Employer liable for self-procured treatment after denial of claim and failure to offer treatment

From the decision · page 8Section 4600 subsection (a) provides: Medical, surgical,... and hospital treatment,... that is reasonably required to cure or relieve the injured worker from the effects of the worker's injury shall be provided by the employer. In the case of the employer's neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment. (§ 4600.) [bold and italica added for emphasis.]

Labor Code sections 4600(c), 4616

If employer establishes MPN, employer liable only for treatment within MPN unless neglect or refusal to provide treatment

Employer liable for self-procured treatment if neglect or refusal to provide treatment after denial of claim

From the decision · page 8If an employer has established an MPN, the employer is only liable for payment for treatment by a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.) However, if the employer neglects or refuses to provide reasonably necessary medical treatment, whether through an MPN or otherwise, then an injured worker may self-procure medical treatment at the employer's expense. (Lab. Code, § 4600(a); see also McCoy v. I.A.C. (1966) 64 Cal.2d 82, 87 [31 Cal.Comp.Cases 93] ["the employer is required to provide treatment which is reasonably necessary to cure or relieve the employee's distress, and if he neglects or refuses to do so, he must reimburse the employee for his expenses in obtaining such treatment"].)

Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423

Employer or insurer's failure to provide required MPN notice resulting in neglect or refusal to provide treatment renders employer liable for self-procured treatment

Failure to provide MPN notice resulting in neglect or refusal to provide treatment makes employer liable for self-procured treatment

From the decision · page 9[2013 Cal. Wrk. Comp. P.D. LEXIS 479]; see also San Diego Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Robledo) (2013) 79 Cal.Comp.Cases 95, 96 (writ den.) [it is applicant's burden to establish that a failure to provide notice of the MPN resulted in a denial of care].) Pursuant to Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 [2006 Cal. Wrk. Comp. LEXIS 323] (Appeals Board en banc), an employer or insurer's failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee. (Id. at 1434.)

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Defendant denied liability for January 20, 2019 injury and did not offer medical treatment for that injury

From the decision · page 8On May 23, 2019, defendant denied applicant's claim of injury for January 20, 2019. On June 26, 2019, applicant's attorney issued a letter designating Dr. Haghighinia as applicant's PTP, and on July 16, 2019, Dr. Haghighinia examined applicant and issued a report. On August 2, 2019, QME Dr. Nottage found that applicant had sustained an injury on January 20, 2019. Yet, there is no evidence that defendant ever offered applicant medical treatment for that injury.

Medical recordsfavours Applicant prevailed

QME Dr. Nottage found injury compensable and defendant later stipulated to injury

From the decision · page 9When a defendant denies liability for a claimed industrial injury, it relinquishes control to direct an applicant's medical treatment, and it may no longer require an applicant to treat within the MPN. Thereafter, an applicant may self-procure medical treatment and when injury is subsequently found, defendant is liable for the cost of the treatment. Here, defendant denied applicant's specific injury occurring on January 20, 2019, and her attorney elected Dr. Haghighinia as her PTP. After defendant's denial of her claimed injury, applicant sought treatment with PTP Dr. Haghighinia, and because liability was denied, applicant was free to seek treatment at her employer's expense with any treater of her choice. Thus, without any proof that defendant offered medical treatment for applicant's January 20, 2019 injury, and in light of the August 2, 2019 report by QME Dr. Nottage that finds that applicant sustained injury and defendant's subsequent stipulation to injury, it appears that defendant is liable for the medical treatment provided by Dr. Haghighinia. Thus, we will rescind the decision and return the matter to the WCJ to determine the reasonableness and necessity of Dr. Haghighinia's treatment.

ADJ12163448 · November 4, 2024