ADJ9341102 — California WCAB decision

What the panel ordered

The Petition for Reconsideration was denied, and the Findings and Order Re: Treatment were affirmed.

Defendant filed a petition for reconsideration of the Findings and Order Re: Treatment issued on March 1, 2021, which was denied by the WCAB panel decision dated May 18, 2021.

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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 prevailedbrain · neck · back · head · psyche · sleep · eyes

The WCJ and panel found the August 4, 2020 UR determination untimely and ordered treatment including psychology consult, home health assistance (HHA) services, transportation, and Aimovig medication as reasonable and necessary based on Dr. Patterson's reports and consistent with MTUS and ODG guidelines. Defendant's arguments relying on surveillance and QME opinions were rejected as not effectively rebutting Dr. Patterson's recommendations.

From the decision · page 1Defendant seeks reconsideration of the Findings and Order Re: Treatment (F&O) issued on March 1, 2021, wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that (1) the August 4, 2020 Utilization Review (UR) determination which non- certified applicant's treating physician's July 7, 2020 Requests for Authorization (RFA) for a psychology consult for counseling services, home health assistance (HHA) services, transportation services to and from medical appointments, and medication in the form of one injection of 140 mg Aimovig per month for three months was untimely; (2) a psychology consult is reasonable and necessary to determine whether applicant requires counseling services; (3) HHA services of eight hours per day, seven days per week, are reasonable and necessary and should continue until a change in circumstances warrants further review; (4) transportation services to and from medical appointments are reasonable and necessary and should continue until a change in circumstances warrants further review; and (5) one injection of Aimovig 140 mg per month for three months is reasonable and necessary. The WCJ ordered defendant to authorize and provide applicant treatment in accordance with these findings.

The facts that decided it

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

The August 4, 2020 Utilization Review determination was untimely, issued 28 days after receipt of the RFA, exceeding the 5 working days limit under Labor Code section 4610.

Favours Applicant prevailed

This untimeliness allowed the WCJ to hear the treatment dispute and order treatment based on reasonableness and necessity under MTUS guidelines.

From the decision · page 51.) For a prospective UR determination, the 28-day period between receipt of the RFAs and the issuance of a notice of determination is not timely under Labor Code section 4610. Pursuant to the en banc opinion of the Appeals Board in Dubon II, cited above, it was fond that medical treatment disputes could be heard based on the untimely UR determination, with reasonableness and necessity of treatment found by reference to the provisionsof the Medical Treatment Utilization Schedule (MTUS) contained in California Code of Regulations, tit. 8, sections 9792.20 et seq., unless the presumption of correctness of the MTUS is rebutted, or the MTUS does not address the particular kind of treatment sought to be authorized.

Dr. Patterson's medical reports supported the reasonableness and necessity of home health assistance services, transportation, and Aimovig medication for the applicant's industrial injuries and conditions.

Favours Applicant prevailed

The WCJ and panel relied on Dr. Patterson's expert opinion to order and affirm authorization of these treatments.

From the decision · page 6With respect to home assistance (HHA) services of 8 hours per day, 7 days per week, that was found to be reasonable and necessary for the reasons set forth in Dr. Patterson's reports dated September 19, 2019 (Applicant's 16), June 25, 2020 (Applicant's 14), and January 11, 2021 (Applicant's 18), all of which support Dr. Patterson's July 7, 2020 RFA (Applicant's 17) as required by MTUS guidelines by identifying the medical condition that requires the assistance (traumatic brain injury, as an objective cause of cognitive and memory problems), the kinds of services required (assistance with essential daily activities such as reminders to take medications at appropriate times, organizing and remembering medical appointments, managing her schedule and mail, all of which have caused applicant difficulty due to her cognitive and memory problems and the fact that other family members are not consistently present to assist her), and the level of expertise required (attendant care).

Surveillance videos showing applicant engaging in activities such as driving and jogging were insufficient to rebut the medical necessity of home assistance and transportation services recommended by Dr. Patterson.

Favours Applicant prevailed

The panel found that isolated incidents of activity do not disprove cognitive impairments requiring assistance, supporting continued treatment authorization.

From the decision · page 6Defendant's petition argues that the need for attendant care for cognitive and memory problems as identified by Dr. Patterson is rebutted by surveillance videos that show applicant driving, jogging, and running errands. The undersigned disagrees. The depiction of isolated incidents of travel, bodily movement, and going to stores is not enough by itself to disprove a diagnosis of unreliable cognitive function from a medical expert. If the video had been reviewed by Dr. Patterson and caused him to change his mind about treatment recommendations, the result would of course have been different. Instead, defendants rely on the medical expert opinions of the QMEs in this case as rebuttal of the treatment recommendations of treating physician Dr. Patterson. This reliance on QME opinion regarding treatment disputes is contrary to California Code of Regulations, title 8, section 35.5(g)(2), which dictates that "[f]or any evaluation

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.

PTPRelied upon

Recommended psychology consult, home health assistance services of 8 hours per day, 7 days per week, transportation services, and Aimovig 140 mg injections for chronic migraine headaches as reasonable and necessary treatment based on cognitive and memory problems from traumatic brain injury and chronic migraine diagnosis.

Dr. Patterson's reports identified medical conditions requiring assistance and met MTUS and ODG guidelines for treatment.

From the decision · page 6With respect to home assistance (HHA) services of 8 hours per day, 7 days per week, that was found to be reasonable and necessary for the reasons set forth in Dr. Patterson's reports dated September 19, 2019 (Applicant's 16), June 25, 2020 (Applicant's 14), and January 11, 2021 (Applicant's 18), all of which support Dr. Patterson's July 7, 2020 RFA (Applicant's 17) as required by MTUS guidelines by identifying the medical condition that requires the assistance (traumatic brain injury, as an objective cause of cognitive and memory problems), the kinds of services required (assistance with essential daily activities such as reminders to take medications at appropriate times, organizing and remembering medical appointments, managing her schedule and mail, all of which have caused applicant difficulty due to her cognitive and memory problems and the fact that other family members are not consistently present to assist her), and the level of expertise required (attendant care).

QMERejected · psychiatry

Found applicant has mild permanent psychiatric disability not total on a purely psychiatric basis; opinion did not effectively rebut Dr. Patterson's treatment recommendations.

General findings of mild disability insufficient to rebut specific treatment recommendations of Dr. Patterson.

From the decision · page 7Furthermore, even if QME opinions on treatment disputes were permissible under the regulations, the selected portions of QME reports cited by defendant in their petition are general statements that do not effectively rebut Dr. Patterson's recommendations even if QMEs were permitted to opine on a treatment dispute. Defendants' petition cites the QME in psychiatry, Dr. Barnett, as having reviewed "social media evidence" and concluding that "applicant has a mild level of permanent psychiatric disability" that is not total on a purely psychiatric basis (Petition for Reconsideration dated March 19, 2021, p. 7, lines 10-14, citing Defendant's AA, PQME Report of Steven Barnett, M.D. dated December 19, 2018). General findings that applicant's condition is "mild" and "not total" is not enough to effectively rebut the very specific recommendation of Dr. Patterson of home assistance for cognitive problems that are consistent with the applicant's diagnoses. Defendant's reliance on orthopedic QME Dr. Nussbaum's finding of zero percent whole person impairment and no work restrictions for the cervical and lumbar spine is even more inapposite, as the home assistance recommendation has nothing to do with the applicant's spine. The petition also quotes the QME in neurology, Dr.

QMERejected · orthopedics

Found zero percent whole person impairment and no work restrictions for cervical and lumbar spine; opinion did not rebut Dr. Patterson's recommendation for home assistance related to cognitive issues.

Home assistance recommendation unrelated to spine condition assessed by QME.

From the decision · page 7Furthermore, even if QME opinions on treatment disputes were permissible under the regulations, the selected portions of QME reports cited by defendant in their petition are general statements that do not effectively rebut Dr. Patterson's recommendations even if QMEs were permitted to opine on a treatment dispute. Defendants' petition cites the QME in psychiatry, Dr. Barnett, as having reviewed "social media evidence" and concluding that "applicant has a mild level of permanent psychiatric disability" that is not total on a purely psychiatric basis (Petition for Reconsideration dated March 19, 2021, p. 7, lines 10-14, citing Defendant's AA, PQME Report of Steven Barnett, M.D. dated December 19, 2018). General findings that applicant's condition is "mild" and "not total" is not enough to effectively rebut the very specific recommendation of Dr. Patterson of home assistance for cognitive problems that are consistent with the applicant's diagnoses. Defendant's reliance on orthopedic QME Dr. Nussbaum's finding of zero percent whole person impairment and no work restrictions for the cervical and lumbar spine is even more inapposite, as the home assistance recommendation has nothing to do with the applicant's spine. The petition also quotes the QME in neurology, Dr.

QMERejected · neurology

Offered somewhat contradictory opinions but ultimately supported need for some assistance due to cognitive difficulties; did not rebut Dr. Patterson's recommendations.

Statements supporting need for assistance consistent with Dr. Patterson's recommendations.

From the decision · page 7Freundlich, who offers somewhat contradictory opinions that applicant is "fully capable of self-care" while "requiring some assistance from her mother" and "fully oriented" while experiencing "slight difficulty with time relationships" (Petition for Reconsideration dated March 19, 2021, p. 7, lines 21-28, citing Defendant's V, PQME Report of Robert Freundlich, M.D. dated March 26, 2020). These statements by Dr. Freundlich ultimately support Dr. Patterson's recommendation for daily assistance, insofar as the applicant is "requiring some assistance from her mother" and having difficulty with time relationships. Dr. Freundlich's assessment of zero percent whole person impairment for loss of vision and headaches, like Dr. Nussbaum's assessment of the cervical and lumbar spine, does not rebut Dr. Patterson's recommendation for assistance for a different condition, to wit, unreliable cognitive functioning. Defendant's reliance on the opinions of its vocational expert is similarly misplaced, as the issue in dispute is the applicant's ability to remember things and organize her affairs, not her earning capacity.

The rules the panel named

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

Labor Code section 4610

Labor Code section 4610 regarding timeliness of Utilization Review determinations

The UR determination was found untimely as it was issued 28 days after receipt of the RFA, exceeding the 5 working days limit.

From the decision · page 51.) For a prospective UR determination, the 28-day period between receipt of the RFAs and the issuance of a notice of determination is not timely under Labor Code section 4610. Pursuant to the en banc opinion of the Appeals Board in Dubon II, cited above, it was fond that medical treatment disputes could be heard based on the untimely UR determination, with reasonableness and necessity of treatment found by reference to the provisionsof the Medical Treatment Utilization Schedule (MTUS) contained in California Code of Regulations, tit. 8, sections 9792.20 et seq., unless the presumption of correctness of the MTUS is rebutted, or the MTUS does not address the particular kind of treatment sought to be authorized.

California Code of Regulations, title 8, sections 9792.20 et seq.

California Code of Regulations, title 8, sections 9792.20 et seq. (Medical Treatment Utilization Schedule)

Reasonableness and necessity of treatment were found by reference to MTUS guidelines.

From the decision · page 51.) For a prospective UR determination, the 28-day period between receipt of the RFAs and the issuance of a notice of determination is not timely under Labor Code section 4610. Pursuant to the en banc opinion of the Appeals Board in Dubon II, cited above, it was fond that medical treatment disputes could be heard based on the untimely UR determination, with reasonableness and necessity of treatment found by reference to the provisionsof the Medical Treatment Utilization Schedule (MTUS) contained in California Code of Regulations, tit. 8, sections 9792.20 et seq., unless the presumption of correctness of the MTUS is rebutted, or the MTUS does not address the particular kind of treatment sought to be authorized.

California Code of Regulations, title 8, section 35.5(g)(2)

California Code of Regulations, title 8, section 35.5(g)(2) prohibiting QMEs from opining on disputed medical treatment issues

The petition's reliance on QME opinions to rebut treatment recommendations was rejected as contrary to this regulation.

From the decision · page 6Defendant's petition argues that the need for attendant care for cognitive and memory problems as identified by Dr. Patterson is rebutted by surveillance videos that show applicant driving, jogging, and running errands. The undersigned disagrees. The depiction of isolated incidents of travel, bodily movement, and going to stores is not enough by itself to disprove a diagnosis of unreliable cognitive function from a medical expert. If the video had been reviewed by Dr. Patterson and caused him to change his mind about treatment recommendations, the result would of course have been different. Instead, defendants rely on the medical expert opinions of the QMEs in this case as rebuttal of the treatment recommendations of treating physician Dr. Patterson. This reliance on QME opinion regarding treatment disputes is contrary to California Code of Regulations, title 8, section 35.5(g)(2), which dictates that "[f]or any evaluation

What proof carried it

The evidence the panel weighed, by kind.

Surveillancefavours Defendant prevailed

Surveillance videos showing applicant driving, jogging, and running errands

From the decision · page 6Defendant's petition argues that the need for attendant care for cognitive and memory problems as identified by Dr. Patterson is rebutted by surveillance videos that show applicant driving, jogging, and running errands. The undersigned disagrees. The depiction of isolated incidents of travel, bodily movement, and going to stores is not enough by itself to disprove a diagnosis of unreliable cognitive function from a medical expert. If the video had been reviewed by Dr. Patterson and caused him to change his mind about treatment recommendations, the result would of course have been different. Instead, defendants rely on the medical expert opinions of the QMEs in this case as rebuttal of the treatment recommendations of treating physician Dr. Patterson. This reliance on QME opinion regarding treatment disputes is contrary to California Code of Regulations, title 8, section 35.5(g)(2), which dictates that "[f]or any evaluation

Medical recordsfavours Applicant prevailed

Applicant's testimony and Dr. Patterson's reports documenting cognitive and memory problems requiring home assistance

From the decision · page 6With respect to home assistance (HHA) services of 8 hours per day, 7 days per week, that was found to be reasonable and necessary for the reasons set forth in Dr. Patterson's reports dated September 19, 2019 (Applicant's 16), June 25, 2020 (Applicant's 14), and January 11, 2021 (Applicant's 18), all of which support Dr. Patterson's July 7, 2020 RFA (Applicant's 17) as required by MTUS guidelines by identifying the medical condition that requires the assistance (traumatic brain injury, as an objective cause of cognitive and memory problems), the kinds of services required (assistance with essential daily activities such as reminders to take medications at appropriate times, organizing and remembering medical appointments, managing her schedule and mail, all of which have caused applicant difficulty due to her cognitive and memory problems and the fact that other family members are not consistently present to assist her), and the level of expertise required (attendant care).

ADJ9341102 · May 18, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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