What the panel ordered
Findings and Award issued by the WCJ on December 1, 2020 is rescinded and the matter is returned to the trial level for further proceedings consistent with this opinion.
Defendant sought reconsideration of the WCJ's Findings and Award dated December 1, 2020, which found defendant responsible for surgery costs. The WCAB granted reconsideration, rescinded the F&A, and remanded for further proceedings.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.
Applicant did not establish by clear and convincing evidence a valid basis for appeal of the IMR determination under section 4610.6(h).
From the decision · page 6In her appeal of the IMR decision, applicant argues that the June 10, 2020 UR decision and corresponding IMR decision are "faulty" because they are inconsistent with the April 29, 2020 UR decision. (Applicant Exhibit No. 9, Petition for Order Vacating IMR Determination, August 4, 2020, p. 6.) This is not a basis to appeal an IMR determination under section 4610.6(h). Therefore, we agree with the WCJ that applicant has not established by clear and convincing evidence a valid basis for appeal of the IMR determination in accordance with the Labor Code.
No legal authority permits the Appeals Board to interpret a UR decision as approving treatment different than what is reflected in the UR and RFA.
From the decision · page 6The only other issue identified at trial was applicant's assertion that the April 29, 2020 UR decision "should be interpreted as approving surgery at the L4-5 level instead of L5-S1." We are unaware of any legal authority permitting the Appeals Board to interpret a UR decision as approving treatment different than what is reflected in the UR and RFA, and applicant did not cite any authority in support of this contention. As stated above, the Appeals Board's jurisdiction is limited to determining the timeliness of the UR decision.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not establish by clear and convincing evidence a valid basis for appeal of the IMR determination under section 4610.6(h).
Favours Defendant prevailed
This fact led to the denial of applicant's appeal from the IMR decision.
From the decision · page 6In her appeal of the IMR decision, applicant argues that the June 10, 2020 UR decision and corresponding IMR decision are "faulty" because they are inconsistent with the April 29, 2020 UR decision. (Applicant Exhibit No. 9, Petition for Order Vacating IMR Determination, August 4, 2020, p. 6.) This is not a basis to appeal an IMR determination under section 4610.6(h). Therefore, we agree with the WCJ that applicant has not established by clear and convincing evidence a valid basis for appeal of the IMR determination in accordance with the Labor Code.
No legal authority permits the Appeals Board to interpret a UR decision as approving treatment different than what is reflected in the UR and RFA.
Favours Defendant prevailed
This fact led to the denial of applicant's claim that the April 29, 2020 UR decision approved surgery at L4-5.
From the decision · page 6The only other issue identified at trial was applicant's assertion that the April 29, 2020 UR decision "should be interpreted as approving surgery at the L4-5 level instead of L5-S1." We are unaware of any legal authority permitting the Appeals Board to interpret a UR decision as approving treatment different than what is reflected in the UR and RFA, and applicant did not cite any authority in support of this contention. As stated above, the Appeals Board's jurisdiction is limited to determining the timeliness of the UR decision.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4610.6(h)
Section 4610.6(h) authorizes the Appeals Board to review an IMR determination of the Administrative Director, which is presumed correct and may only be set aside by clear and convincing evidence of specific grounds.
Applied to determine that applicant did not meet the burden to overturn the IMR determination.
From the decision · page 6Section 4610.6(h) authorizes the Appeals Board to review an IMR determination of the Administrative Director (AD). The section explicitly provides that the AD's determination is presumed to be correct and may only be set aside by clear and convincing evidence of one or more of the following: (1) the AD acted without or in excess of his or her powers, (2) the AD's determination was procured by fraud, (3) the independent medical reviewer had a material conflict of interest, (4) the determination was the result of bias based on race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, or (5) the determination was the result of an erroneous finding of fact not subject to expert opinion. (Lab. Code, § 4610.6(h).)
Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (en banc)
The Appeals Board's jurisdiction regarding a disputed UR decision is restricted to whether the decision was timely. If timely, all other disputes must be resolved by IMR.
Applied to hold that the Board could not address the necessity of the disputed medical treatment if the UR decision was timely.
From the decision · page 7The WCJ concluded in the F&A that defendant "knew or should have known that the intended surgical level was L4-5 prior to June 10, 2020." We disagree that an inference about what defendant "should have known" about the recommended treatment confers jurisdiction on the Appeals Board to award treatment non-certified by a UR decision that was upheld by IMR. As stated above, the Appeals Board's jurisdiction regarding a disputed UR decision is restricted to whether the decision was timely. (Dubon II, supra.) In the event the June 10, 2020 UR decision was timely made (and timely communicated), the Appeals Board has no jurisdiction to address the necessity of the disputed medical treatment and applicant's sole remedy to dispute the UR decision was through IMR and the process to appeal IMR per section 4610.6(h).
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