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California WCABPanel decision

ADJ12336780 · October 2, 2023

Petition for Reconsideration denied.

Issues decided: 1
Medical opinions weighed: 1
Authorities named: 3
District office: Oakland

What the panel ordered

Petition for Reconsideration denied.

Defendant sought reconsideration of the WCJ's Findings of Fact and Orders issued on July 13, 2023, which the WCAB panel denied.

Read the official decision →

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 / IMRDefendant prevailedhead · nose · left shoulder

The Board found that medical-legal expenses related to utilization review denials are not payable by the defendant under Labor Code section 4064, but are medical-legal expenses incurred pursuant to section 4620 by the applicant.

From the decision · page 3(a) The employer shall be liable for the cost of each reasonable and necessary comprehensive medical-legal evaluation obtained by the employee pursuant to Sections 4060, 4061, and 4062. Each comprehensive medical-legal evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms, except medical treatment recommendations, which are subject to utilization review as provided by Section 4610, and objections to utilization review determinations, which are subject to independent medical review as provided by Section 4610.5.... (Lab. Code, § 4064.)2

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Dr. Martinovsky's reports addressed only treatment denied by utilization review, not all contested medical issues.

Favours Defendant prevailed

This meant the reports were medical-legal expenses under Labor Code section 4620, not payable under section 4064.

From the decision · page 3As applicant's primary treating physician (PTP), Dr. Martinovsky recommended various treatment protocols which were denied by utilization review. When authorization for treatment sought by an injured worker's PTP is denied by UR, the injured worker is entitled to obtain a report from the PTP contesting the utilization review denial. (Lab. Code, § 4610.5(f)(3)(A).) In the reports at issue herein, Dr. Martinovsky did not "address all contested medical issues arising from all injuries;" instead he addressed only the treatment he requested (a benefit to which applicant was claiming entitlement) that had been denied by UR. Thus, his July 9, 2020, April 13, 2021, and July 24, 2021reports were medical-legal expenses incurred by applicant pursuant to section 4620.

Defendant cured the defect of an unverified petition by filing a verified supplemental petition within a reasonable time.

Favours Defendant prevailed

Allowed the Board to consider the merits of the petition for reconsideration.

From the decision · page 2DISCUSSION We first note that, as the WCJ stated in her Report, defendant filed an unverified petition for reconsideration. Labor Code section 5902 requires that a petition for reconsideration be verified. (See also Cal. Code Regs., tit. 8, § 10510(d).) We have previously held that where a petition for reconsideration is not verified, the petition may be dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of verification and the record establishes that the respondents are not prejudiced by the lack of verification. (See Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision).)1 One week after filing its initial Petition, defendant filed a "Supplemental" Petition including a verification. Defendant "cured" the defect in a reasonable time. Based thereon, the Supplemental Petition is accepted and is addressed on the merits.

ADJ12336780 — California WCAB decision · SimilarCase