What the panel ordered
Defendant's Petition for Reconsideration is denied.
Defendant filed a Petition for Reconsideration of the WCJ's Findings and Award dated June 21, 2024, which was timely acted upon by the Appeals Board on October 11, 2024.
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.
The WCAB found that the Request for Authorization (RFA) for expedited utilization review was timely submitted and met the criteria for expedited review due to the applicant's serious traumatic brain injury and associated impairments posing an imminent and serious threat to health. The UR decision was untimely, and the requested supported living program was reasonably required medical treatment. Therefore, the defendant's petition contesting the timeliness and medical necessity was denied.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Request for Authorization (RFA) for expedited utilization review was submitted on April 10, 2024, with supporting medical evidence from Dr. Henry Koh documenting serious cognitive and physical impairments posing an imminent and serious threat to health.
Favours Applicant prevailed
This established the criteria for expedited review under Labor Code section 4610(i)(3), making the UR vendor's failure to respond within 72 hours untimely and giving the WCAB jurisdiction over the medical treatment dispute.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
Applicant suffered serious traumatic brain injury with cognitive impairments and risk of falls, including documented falls in March and October 2023, demonstrating serious harm and need for continued supported living program.
Favours Applicant prevailed
This supported the medical necessity of the requested treatment and justified expedited review.
From the decision · page 9Applicant's effects of the industrial injury to the head and brain affecting a constellation of basic bodily functions and activities of daily living including but not limited to: attention, memory, processing speed, executive functioning, speech dysfluencies; impaired balance and a risk of imminent falls; headaches, dizziness, tinnitus, blurred/impaired vision, and tremors; urge incontinence; forgetfulness; and he is in need of psychiatric care for his major depressive disorder and anxiety. Applicant is effectively precluded from any work. Further, applicant lacks family support. Applicant fits the first criteria for expedited review set forth in Labor Code section 4610(i)(3) as the effects of his injury have already resulted in serious harm in form of subsequent falls in March of 2023 and October of 2023.
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.
Dr. Koh diagnosed traumatic brain injury with cognitive impairments and opined that the applicant is 100% permanently disabled, unable to compete in the open labor market, and requires a supported living program due to risk of falls and cognitive deficits.
Dr. Koh's PR-4 report and RFA supported the need for expedited review and the medical necessity of the supported living program.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
Dr. Parke provided neurocognitive treatment and reported psychiatric impairments related to forgetfulness and cognitive deficits.
Dr. Parke's report was considered in assessing the applicant's cognitive impairments and psychiatric condition.
From the decision · page 7Applicant is suffering from a non-industrial cancer diagnosis in the neck, and though this non-industrial. (Id.) Neurocognitive treatment was provided by Dr. Parke. Dr. Parke reported a history of Applicant leaving the water running, forgetting to start his dishwasher, and using tools like notes to track forgetfulness about tasks. (Id., at 1.) Applicant has limited family support in the local area. (Id., at 2.) Dr. Koh opines that applicant is rated at 100% disabled because of the industrial injury and is not able to compete in the open labor market. (Id. at 5.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 4610(i)(3)
Defines criteria for expedited utilization review when there is an imminent and serious threat to health.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
California Code of Regulations
8 C.C.R. 9792.9.1(c)(4)
Specifies time limits for utilization review and expedited review criteria.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
CA-WCAB en banc decision
Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc)
Establishes that the Appeals Board has jurisdiction over untimely utilization review decisions and medical necessity determinations in such cases.
From the decision · page 4On 05-06-2024, the Applicant's Clinical Case Manager at the Centre for Neuro Skills, Courtney Asbill, M.A., submitted a letter as part of an internal appeal to Utilization Review to appeal the UR denial. (Ex. 5.) For UR, the time limits set forth in Labor code section 4610 are mandatory. The Appeals Board does not have jurisdiction to address whether treatment requested in a timely UR decision is reasonably required. Appeal of a timely UR delay, denial, or modifying a treatment request is the purview of Independent Medical Review (IMR). The "IMR process is the exclusive mechanism for review of a utilization review decision." (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [236 Cal. Rptr. 3d 853, 423 P.3d 975, 83 Cal.Comp.Cases 1523]; Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc).) However, Board has jurisdiction to determine whether a UR decision is timely. Pursuant to Dubon, if UR is untimely or otherwise "suffers from material procedural defects," the issue of medical necessity is not subject to IMR but is to be determined by the Appeals Board based upon substantial medical evidence with the employee having the burden of proving the treatment is reasonably required.
California Supreme Court
King v. CompPartners, Inc. (2018) 5 Cal.5th 1039
Confirms that Independent Medical Review (IMR) is the exclusive mechanism for review of timely utilization review decisions, but the Appeals Board retains jurisdiction over untimely decisions.
From the decision · page 4On 05-06-2024, the Applicant's Clinical Case Manager at the Centre for Neuro Skills, Courtney Asbill, M.A., submitted a letter as part of an internal appeal to Utilization Review to appeal the UR denial. (Ex. 5.) For UR, the time limits set forth in Labor code section 4610 are mandatory. The Appeals Board does not have jurisdiction to address whether treatment requested in a timely UR decision is reasonably required. Appeal of a timely UR delay, denial, or modifying a treatment request is the purview of Independent Medical Review (IMR). The "IMR process is the exclusive mechanism for review of a utilization review decision." (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [236 Cal. Rptr. 3d 853, 423 P.3d 975, 83 Cal.Comp.Cases 1523]; Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc).) However, Board has jurisdiction to determine whether a UR decision is timely. Pursuant to Dubon, if UR is untimely or otherwise "suffers from material procedural defects," the issue of medical necessity is not subject to IMR but is to be determined by the Appeals Board based upon substantial medical evidence with the employee having the burden of proving the treatment is reasonably required.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's treating physician Dr. Henry Koh's PR-4 report dated 03-22-2024 documenting cognitive impairments, risk of falls, and need for supported living program.
From the decision · page 3Turning to the merits, the Opinion and Decision and the Report explain why the March 22, 2024 report of primary treating physician Henry Koh, M.D. meets the criteria for expedited review pursuant to Labor Code section 4610(i)(3) and Administrative Rule 9792.9.1(c)(4) (Cal. Code Regs., tit. 8, § 9792.9.1, subd. (c)(4).) The Petition appears to argue that the criteria was not met because Dr. Koh did not use the specific language of the statute and/or regulation in explaining why expedited review was necessary. However, the statute and regulation only require that the request or accompanying report document the need for expedited review, not that any specific language be utilized or that the substantiation occur in any specific place of the request or accompanying medical report. Accordingly, we will deny defendant's Petition for the reasons stated in the Opinion on Decision and Report quoted below. We have omitted the discussion in the Report of applicant's case manager's letter of May 6, 2024 as evidence that applicant's request for expedited review was properly supported. Since this letter was drafted after the submission of the RFA, and was not submitted to the defendant as part of the UR process, it cannot be a basis for stating that the request for expedited review was proper. However, Dr. Koh's report itself contains the basis for the necessity of expedited review.
Applicant's history of falls in March 2023 and October 2023 as evidence of serious harm and need for expedited review.
From the decision · page 9Applicant's effects of the industrial injury to the head and brain affecting a constellation of basic bodily functions and activities of daily living including but not limited to: attention, memory, processing speed, executive functioning, speech dysfluencies; impaired balance and a risk of imminent falls; headaches, dizziness, tinnitus, blurred/impaired vision, and tremors; urge incontinence; forgetfulness; and he is in need of psychiatric care for his major depressive disorder and anxiety. Applicant is effectively precluded from any work. Further, applicant lacks family support. Applicant fits the first criteria for expedited review set forth in Labor Code section 4610(i)(3) as the effects of his injury have already resulted in serious harm in form of subsequent falls in March of 2023 and October of 2023.
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