ADJ11380052 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied, affirming the WCJ's findings that the utilization review determination was untimely and that the requested outpatient rehabilitation program is reasonable and necessary.

Defendant seeks reconsideration of the Findings of Fact and Order issued on May 4, 2022, regarding the timeliness of a utilization review determination and the medical necessity of an outpatient rehabilitation program request.

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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 prevailedhead · neck · upper back · brain · eyes · right shoulder · psyche

The WCJ correctly found the utilization review determination untimely due to defendant's attorney's delay in submitting the request for authorization to the claims administrator, and substantial medical evidence supports the necessity of the requested outpatient rehabilitation program.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact and Order (F&O) issued on May 4, 2022, wherein the workers' compensation administrative law judge (WCJ) found that (1) while employed as a scheduling clerk on June 1, 2018, applicant sustained injury arising out of and in the course of employment to the head, neck, and upper back, and claims to have sustained injury to the brain, eyes, right shoulder, psyche, and in the form of nausea, headaches and insomnia; (2) the parties stipulated that applicant's primary treating physician (PTP) is Jacobo Chodakiewitz, M.D; (3) the WCJ has jurisdiction to address the PTP's request for treatment in the form of an outpatient rehabilitation program for balance and pain management because the utilization review (UR) determination denying the request was untimely; and (4) there is substantial evidence to support the request for the outpatient rehabilitation program in order to cure or relieve the effects of applicant's industrial injury.

The facts that decided it

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

Defendant's attorney received the PTP report labeled as 'Request for Authorization' on November 22, 2021 but delayed submitting it to the claims administrator for approximately two and a half months.

Favours Applicant prevailed

This delay caused the utilization review determination to be untimely, giving the WCJ jurisdiction to decide the medical necessity of the requested treatment.

From the decision · page 8In this case, as stated in the Report, defendant's attorney received the November 17, 2021 report labeled as a "Request for Authorization" on November 22, 2021 and submitted it for UR on or about February 14, 2022. (Report, pp. 3, 6.) Since defendant's attorney did not submit a copy of the report to the adjuster (or UR provider) or otherwise take affirmative steps to investigate the treatment request for approximately two and a half months after receiving it, we conclude that the UR determination was untimely. As such, we are unable to discern error in the WCJ's finding that she has jurisdiction to determine the issue of whether the request for an outpatient rehabilitation program for balance and pain management is reasonably necessary. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1300 (Appeals Board en banc) (Dubon II).)

Applicant has not reached maximum medical improvement and continues to experience chronic headaches, dizziness, vertigo, and balance problems.

Favours Applicant prevailed

These ongoing symptoms and the PQME's testimony support the medical necessity of the requested outpatient rehabilitation program.

From the decision · page 8Turning to defendant's contention that the WCJ erroneously determined that the request for the outpatient rehabilitation program for balance and pain management is supported by substantial medical evidence, we agree with the WCJ's reasoning, as stated in Opinion on Decision and the Report, that the record demonstrates that applicant has not reached maximum medical improvement and continues to experience chronic headaches, dizziness, vertigo, and balance problems; that applicant meets the criteria for enrollment in the program according to the PQME's testimony; and that treatment in the form of "a rehabilitation program that includes balance rehabilitation and pain management at CNS, Casa Colina or its equivalent" is therefore warranted (Report, pp. 4-5; Opinion on Decision, pp. 5-6.)

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

Requested outpatient rehabilitation program for balance and pain management to cure or relieve effects of industrial injury.

PTP's medical report dated 11/17/2021 supports the request for outpatient rehabilitation program as reasonable and necessary.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact and Order (F&O) issued on May 4, 2022, wherein the workers' compensation administrative law judge (WCJ) found that (1) while employed as a scheduling clerk on June 1, 2018, applicant sustained injury arising out of and in the course of employment to the head, neck, and upper back, and claims to have sustained injury to the brain, eyes, right shoulder, psyche, and in the form of nausea, headaches and insomnia; (2) the parties stipulated that applicant's primary treating physician (PTP) is Jacobo Chodakiewitz, M.D; (3) the WCJ has jurisdiction to address the PTP's request for treatment in the form of an outpatient rehabilitation program for balance and pain management because the utilization review (UR) determination denying the request was untimely; and (4) there is substantial evidence to support the request for the outpatient rehabilitation program in order to cure or relieve the effects of applicant's industrial injury.

QMERelied upon · neurology

Testified that a multi-disciplinary outpatient rehabilitation program would be beneficial to the applicant's recovery.

PQME testified that the applicant meets criteria for enrollment in the rehabilitation program and that it would be beneficial.

From the decision · page 46. Applicant's Ex. 6 § 2/10/21 deposition transcript of neurology QME, Dr. Natalia Ratiner, MD. The PQME testified that a multi-disciplinary approach at an outpatient facility would be beneficial to the applicant's recovery. (20:12 § 22:13). In their brief, applicant's attorney designated pages to review to support the request.

The rules the panel named

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

Labor Code section 4610(i)(1); Cal. Code Regs., tit. 8, 9792.9.1(c)(2)(B)

Utilization review determination deadlines under Labor Code section 4610(i)(1) and California Code of Regulations, title 8, section 9792.9.1(c)(2)(B).

The WCJ found the UR determination untimely because the defendant's attorney delayed submitting the request for authorization to the claims administrator, thus triggering jurisdiction to decide medical necessity.

From the decision · page 5(1) Except for treatment requests made pursuant to the formulary, prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee's condition, not to exceed five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.... (§ 4610(i)(1).)

Labor Code section 5906

Petition for reconsideration procedure under Labor Code section 5906.

The WCAB declined to augment the record with new evidence submitted after the petition for reconsideration, deciding the matter on the existing record.

From the decision · page 9In this regard, we observe that section 5906 provides, in pertinent part: Upon the filing of a petition for reconsideration, or having granted reconsideration upon its own motion, the appeals board may, with or without further proceedings and with or without notice affirm, rescind, alter, or amend the order, decision, or award made and filed by the appeals board or the workers' compensation judge on the basis of the evidence previously submitted in the case, or may grant reconsideration and direct the taking of additional evidence. (§ 5903 [Emphasis added].) We have evaluated the evidence previously admitted by the WCJ and determined the merits of the Petition without concluding that further development of the record is needed. Accordingly, we decline to augment the record so that we may consider the May 2, 2022 IMR decision. Accordingly, we will deny the Petition.

ADJ11380052 · July 18, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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