ADJ11005277 — California WCAB decision

What the panel ordered

The WCAB panel granted reconsideration, amended the WCJ's decision to clarify entitlement to completion of care outside defendant's MPN, and otherwise affirmed the WCJ's Findings and Award.

Defendant sought reconsideration of the December 21, 2020 Findings and Award by the WCJ, which was granted by the WCAB panel, leading to an amended decision affirming entitlement to medical treatment outside the defendant's MPN.

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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 prevailedright ankle

The WCAB found that the applicant was entitled to complete her medical treatment, including surgery, outside the defendant's MPN because the surgery was certified through utilization review and requested within 180 days of the MPN coverage effective date, satisfying the exception under Labor Code section 4616.2.

From the decision · page 1Defendant seeks reconsideration of the December 21, 2020 Findings and Award issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained admitted industrial injury to her right ankle while employed as a janitor on December 10, 2013 (ADJ11327025) and on March 9, 2017 (ADJ11005277). The WCJ made the following additional findings: "(4) Applicant wishes to undergo the procedure at issue, and would like it to be performed by Dr. Paul Hughes at NMCI. Dr. Hughes is not in defendant's medical provider network;" "(5) Defendant first established its entitlement to transfer applicant's care to its medical provider network on July 1, 2020. Dr. Hughes requested authorization for surgery on September 8, 2020. The request was certified through utilization review on September 23, 2020;" and "(6) There is need for medical treatment to cure or relieve from the effects of said injury, specifically including the procedure for which Dr. Hughes requested authorization on September 8, 2020." Based on these findings, the WCJ made an award of medical treatment "consistent with findings of fact number 6."

The facts that decided it

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

Surgery was requested on September 8, 2020, and certified through utilization review on September 23, 2020, within 180 days of the MPN coverage effective date of July 1, 2020.

Favours Applicant prevailed

This timing satisfied the exception under Labor Code section 4616.2 allowing completion of care outside the MPN.

From the decision · page 1Defendant seeks reconsideration of the December 21, 2020 Findings and Award issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained admitted industrial injury to her right ankle while employed as a janitor on December 10, 2013 (ADJ11327025) and on March 9, 2017 (ADJ11005277). The WCJ made the following additional findings: "(4) Applicant wishes to undergo the procedure at issue, and would like it to be performed by Dr. Paul Hughes at NMCI. Dr. Hughes is not in defendant's medical provider network;" "(5) Defendant first established its entitlement to transfer applicant's care to its medical provider network on July 1, 2020. Dr. Hughes requested authorization for surgery on September 8, 2020. The request was certified through utilization review on September 23, 2020;" and "(6) There is need for medical treatment to cure or relieve from the effects of said injury, specifically including the procedure for which Dr. Hughes requested authorization on September 8, 2020." Based on these findings, the WCJ made an award of medical treatment "consistent with findings of fact number 6."

Defendant denied authorization of surgery despite certification, leading to dispute over medical treatment control.

Favours Applicant prevailed

This distinction between certification and authorization was central to the dispute and the finding of entitlement to treatment outside the MPN.

From the decision · page 8I must point out what appears to be a misstatement in the factual presentation provided by defendant (at page 3, number 14), which I believe is relevant to the issue under study: Defendant claims that it authorized the requested surgery and attendant care. It did not. The evidence cited is four UR determinations. These show only that the treatment was found reasonable and was certified through UR. Defendant expressly denied authorization to NMCI for the requested measures, as applicant points out in her answer. Defendant explained at trial that while the treatment was certified, the request to proceed was rejected because it was made by a non-MPN physician. (Applicant was allegedly free to have the surgery within the MPN.) This difference, between certification and authorization, is at the heart of the current dispute, and there would not have been a dispute at all if the representation that surgery was actually authorized were true. The two things are conflated several times throughout the instant petition. (The distinction is not made clear in the statutory or regulatory authorities, and the term "authorized" is used in both senses in the decision, as well.)

Applicant's condition worsened from being pain-free in May 2020 to needing surgery in September 2020.

Favours Applicant prevailed

This medical evidence supported the necessity of surgery and entitlement to treatment outside the MPN.

From the decision · page 118 In its petition, defendant requests "correction" of the statement in the opinion that it had not authorized treatment, again pointing to its UR determinations. Once more, however, this appears to be owing to the two different uses of "authorized." It certified the treatment but did not authorize the requesting physician to perform that treatment. I do not believe that I misstated this fact, except perhaps to use that crucial word in both ways. Defendant requests a second correction, to the statement that "By the time of the hearing on September 11, 2020, applicant's condition had evidently worsened in the 90 days prior: She had gone from being reportedly pain-free on May 11, 2020, to needing surgery on September 8, 2020." While the surgeon states in that September report that "review of systems" (typically meaning general health) is "essentially unchanged," he describes pain in the foot and ankle that was not reported in May.

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 · Podiatry

Dr. Glasser repeatedly concluded that the applicant's right ankle injury was industrial and not an exacerbation of a prior condition, and that surgery was indicated and certified through utilization review.

The QME's repeated conclusions of industrial liability and surgical necessity were central to the entitlement to treatment outside the MPN.

From the decision · page 4The injury took place as applicant was ascending stairs at work while carrying a vacuum cleaner. She tripped but did not fall, and in the process injured her right ankle. She reported the injury on the day it took place (Exh. E, review of records), but defendant, on May 30, 2017, denied liability, stating they did not "have a med/legal report addressing causation. We are awaiting the Medical Unit to issue [sic] a panel list [of qualified medical evaluators (QMEs)]." (Denial letter, May 30, 2017, filed in EAMS.2) After several skirmishes over the parties' respective efforts to obtain valid panels in different specialties, a panel of QMEs did issue, from which was selected the name of Jay Glasser, DPM. In his initial report, dated July 9, 2018, Dr. Glasser reviews medical records dating back to before applicant's earlier injury, in 2013, describes his findings on examining her, and concludes that the injury took place as reported and did not constitute "an exacerbation or aggravation of a prior condition." (Exh. A) The case remained in denied status.

PTPRelied upon

Dr. Hughes recommended surgery for the applicant's right ankle injury, which was certified through utilization review but not authorized by the defendant due to MPN restrictions.

Dr. Hughes' surgical recommendation was certified through utilization review, supporting the exception to MPN transfer.

From the decision · page 1Defendant seeks reconsideration of the December 21, 2020 Findings and Award issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained admitted industrial injury to her right ankle while employed as a janitor on December 10, 2013 (ADJ11327025) and on March 9, 2017 (ADJ11005277). The WCJ made the following additional findings: "(4) Applicant wishes to undergo the procedure at issue, and would like it to be performed by Dr. Paul Hughes at NMCI. Dr. Hughes is not in defendant's medical provider network;" "(5) Defendant first established its entitlement to transfer applicant's care to its medical provider network on July 1, 2020. Dr. Hughes requested authorization for surgery on September 8, 2020. The request was certified through utilization review on September 23, 2020;" and "(6) There is need for medical treatment to cure or relieve from the effects of said injury, specifically including the procedure for which Dr. Hughes requested authorization on September 8, 2020." Based on these findings, the WCJ made an award of medical treatment "consistent with findings of fact number 6."

The rules the panel named

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

California Labor Code

Labor Code section 4616.2

Governs exceptions to transfer of care into employer's MPN, including serious chronic conditions and surgery within 180 days of MPN coverage effective date.

From the decision · page 1Defendant contends that the WCJ should have applied Labor Code section 4616.2 to find applicant not entitled to an exception to the transfer of care into defendant's medical provider network (MPN).

California Labor Code

Labor Code section 4610

Requires utilization review process for reasonableness and necessity of medical treatment.

From the decision · page 11While the question of whether an employee is suffering from a serious, chronic condition is one that I believe section 4616.2 properly directs be put to an AME or QME, under the conditions governed by that statute, section 4062 clearly limits the issues to be addressed by evaluating physicians. That section requires the parties to a workers' compensation case to use such physicians to resolve disputes arising from disagreements with treating doctors' determinations "concerning any medical issues not covered by Section 40609 or 406110 and not subject to Section 4610." (Emphasis added.) Here, we have two different exceptions to an employee's obligation to transfer her treatment to defendant's MPN, only one of which is subject, statutorily, to determination through the medical-legal process. Instead, questions of the reasonableness and necessity of medical treatment currently recommended must, under section 4610, be determined through the utilization review process outlined in and pursuant to that statute. Defendant, therefore, properly put the surgery recommended by Dr. Hughes, of NMCI, through UR, and the result was that the reasonableness and necessity of the procedure were certified.

California Code of Regulations

CCR 9767.9(h)

Provides for continuity of care when surgery is recommended within 180 days of MPN coverage effective date.

From the decision · page 12Therefore, although it had not been answered by the time of the first hearing on September 11, 2020 (when the parties were ordered to ask for the QME's assessment of the seriousness and chronicity of applicant's condition), the question of applicant's entitlement to the proposed surgery was answered by UR on September 12, 2020, and that answer was available by the time of the hearing on December 10, 2020. The applicable regulation provides for continuity of care when surgery has been "recommended and documented by the provider to occur within 180 days from the MPN coverage effective date." The MPN coverage date i.e., when defendant first acquired the right to transfer applicant's treatment to its MPN was July 1, 2020. The surgery was requested on September 8, 2020, and approved on September 23, 2020. Those dates are well within 180 days of one another.

ADJ11005277 · March 15, 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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