ADJ12663627 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the WCAB panel.

Petition for Reconsideration filed by defendant Macy's from the WCJ's December 20, 2024 Findings and Award, denied by the WCAB panel on March 18, 2025.

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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 prevailedlumbar spine

The WCJ found the applicant entitled to further medical treatment including lumbar surgery based on substantial medical evidence from the treating physician, QME, and other medical reports showing conservative treatment was exhausted and surgery was reasonable and necessary. The WCAB panel adopted and incorporated the WCJ's findings and denied defendant's petition for reconsideration.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

The facts that decided it

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

Applicant exhausted all conservative treatment options for lumbar spine injury without improvement.

Favours Applicant prevailed

This fact supported the WCJ's finding that further medical treatment, including surgery, was reasonable and necessary.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

Medical evidence from treating physician Dr. Abitbol, QME Dr. Esch, and Dr. Kupfer showed progressive neurological deficits and lumbar disc disease requiring surgery.

Favours Applicant prevailed

This evidence was given great weight and formed the basis for authorizing surgery and denying reconsideration.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

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.

PTPGiven great weight · spinal surgeon

Supports anterior lumbar interbody fusion L5-S1 surgery as reasonable and necessary after failed conservative treatment and worsening neurological deficits.

Based on clinical examination, diagnostic imaging, and treatment history showing failure of conservative care and progressive symptoms.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

QMEGiven great weight

Found applicant permanent and stationary with lumbar disc disease and radiculopathy; recommended future medical care including possible lumbar surgery if injections fail.

Reviewed extensive medical records and diagnostic studies supporting lumbar disc disease and radiculopathy related to industrial injury.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

otherGiven great weight

Reported ongoing symptoms and worsening condition supporting surgery; noted applicant eager to proceed with lumbar surgery.

Based on clinical follow-up and review of treatment progress showing no improvement and worsening symptoms.

From the decision · page 12The reporting of Dr. Kupfer, Dr. Esch, and Dr. Abitbol are found all to be substantial medical evidence and this WCJ gives great weight to their findings. Based on the reporting from applicant's PTP, who clearly indicates that her low back is affecting her activities of daily living, the reporting from Dr. Abitbol, the spinal surgeon, as well as the QME, Dr. Esch, it is clear that applicant's treatment of conservative care is ineffective to cure or relieve the effects of the industrial injury. Applicant has participated in conservative care and exhausted such option for her lumbar spine. Therefore, this WCJ now finds that applicant is entitled to further medical treatment in the form of an anterior lumber interbody fusion L5-S1 as requested by the treating physician Dr. Abitbol and all other treatment delineated on his RFA dated March 18, 2024. This WCJ finds this treatment to be reasonable and necessary and should be authorized and scheduled as quickly as possible.

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 (Appeals Board en banc)

If a Utilization Review (UR) denial is untimely, the WCAB has jurisdiction to determine medical necessity based on substantial medical evidence consistent with Labor Code section 4604.5.

Applied to find jurisdiction to determine medical necessity due to untimely UR denial.

From the decision · page 9As determined in Dubon v. World Restoration, Inc., (2104) 79 Cal.Comp.Cases 1298 (Appeals Board en banc) (Dubon II), if a UR denial is untimely, the determination of medical necessity of the disputed medical treatment may be made by the WCAB based on substantial medical evidence consistent with section 4604.5. (See also State Compensation Ins. Fund v. Workers' Compensation Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 240-241 [73 Cal.Comp.Cases 981].) In the present case, there is no timely UR denial. Therefore, the Board has jurisdiction to determine the medical necessity of the request of the lumbar surgery in the form of a fusion along with the requested additional treatment delineated in the RFA dated March 18, 2024, from Dr. Abitbol.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support of its conclusions.

Applied to evaluate medical opinions supporting treatment necessity.

From the decision · page 10A decision regarding the medical necessity of the treatment request must be supported by substantial evidence in light of the entire record. (Dubon II, supra; Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal. 3d 274 [113 Cal. Rptr. 162, 520 P.2d 978, 39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal. 3d 627 [83 Cal. Rptr. 208, 463 P.2d 432, 35 Cal.Comp.Cases 16].) The Appeals Board has stated, "a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [Appeals Board en banc].)

ADJ12663627 · March 18, 2025

What the panel ordered

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The facts that decided it

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