What the panel ordered
Reconsideration granted; November 14, 2023 Findings of Fact rescinded; matter returned to trial level for further proceedings and decision by the WCJ.
Applicant petitioned for reconsideration of the November 14, 2023 Findings of Fact, which found the WCAB lacked jurisdiction to determine whether the Brain Injury Program requested by the primary treating physician was reasonable and necessary. The WCAB granted reconsideration, rescinded the WCJ's decision, and returned the matter for further proceedings.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.
The WCJ originally found no jurisdiction because the July 7, 2023 RFA was not based on a material change in fact. Upon reconsideration, the Board found the new information provided by Dr. Lo may document a change in material facts, warranting further proceedings.
From the decision · page 6The salient issues to be determined herein are whether the Workers' Compensation Appeals Board had jurisdiction to determine whether the Brain Injury Program requested by the primary treating physician, Dr. Timothy Lo, in the July 7, 2023 (Exh. 1) Appeal/Request for Authorization (RFA) is reasonable and necessary to cure or relieve applicant from the effects of the herein injury, and if so, whether applicant is in need of the Brain Injury Program.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Lo's June 27, 2023 report and July 7, 2023 RFA may document a change in material facts, addressing deficiencies noted in the prior UR denial.
Favours Applicant prevailed
This new information may constitute a material change in facts, warranting further proceedings on the medical necessity of the Brain Injury Program.
From the decision · page 7In my decision, I noted that the brain injury program was the subject of a prior June 15, 2023 RFA, and the June 22, 2023 UR determination did not certify the program. This UR determination stated that the RFA and supporting documents did not provide documentation regarding the objective evidence of deficits in muscular strength, endurance, socialization issues, and dependency on activities of daily living, and also pointed out that there was no notation in the records submitted for review of the failure of other outpatient therapies. Dr. Lo then issued a June 27, 2023 report and a July 7, 2023 RFA. Upon reconsideration, I am now of the opinion that the information provided by Dr. Lo in the June 27, 2023 report and the July 7, 2023 RFA may document a change in material facts. This is because the information provided by Dr. Lo addresses the facts which were noted by the UR reviewer as lacking in the prior RFA of June 15, 2023. Therefore, I am recommending that reconsideration be granted, that my decision be vacated, and that the matter be returned to the trial level for further proceedings and decision.
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. Lo provided a June 27, 2023 report and a July 7, 2023 RFA, which may document a change in material facts regarding the need for the Brain Injury Program, addressing deficiencies noted in the prior UR denial.
The Board found Dr. Lo's new information may document a change in material facts, warranting further proceedings.
From the decision · page 7In my decision, I noted that the brain injury program was the subject of a prior June 15, 2023 RFA, and the June 22, 2023 UR determination did not certify the program. This UR determination stated that the RFA and supporting documents did not provide documentation regarding the objective evidence of deficits in muscular strength, endurance, socialization issues, and dependency on activities of daily living, and also pointed out that there was no notation in the records submitted for review of the failure of other outpatient therapies. Dr. Lo then issued a June 27, 2023 report and a July 7, 2023 RFA. Upon reconsideration, I am now of the opinion that the information provided by Dr. Lo in the June 27, 2023 report and the July 7, 2023 RFA may document a change in material facts. This is because the information provided by Dr. Lo addresses the facts which were noted by the UR reviewer as lacking in the prior RFA of June 15, 2023. Therefore, I am recommending that reconsideration be granted, that my decision be vacated, and that the matter be returned to the trial level for further proceedings and decision.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493]; Lab. Code, § 5909
A timely petition for reconsideration must be filed at the district office, and the time limit is jurisdictional. The Board's time to act on a petition is tolled if the failure to act is due to lack of notice through no fault of the parties (Shipley v. WCAB; Lab. Code, § 5909).
The Board found its time to act on the petition was tolled until 60 days after it received notice, as the delay was through no fault of the parties.
From the decision · page 4applicant's petition was tolled until 60 days after February 14, 2024.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Lo's June 27, 2023 report and July 7, 2023 RFA addressed the deficiencies noted in the prior UR denial, potentially constituting a material change in facts.
From the decision · page 7In my decision, I noted that the brain injury program was the subject of a prior June 15, 2023 RFA, and the June 22, 2023 UR determination did not certify the program. This UR determination stated that the RFA and supporting documents did not provide documentation regarding the objective evidence of deficits in muscular strength, endurance, socialization issues, and dependency on activities of daily living, and also pointed out that there was no notation in the records submitted for review of the failure of other outpatient therapies. Dr. Lo then issued a June 27, 2023 report and a July 7, 2023 RFA. Upon reconsideration, I am now of the opinion that the information provided by Dr. Lo in the June 27, 2023 report and the July 7, 2023 RFA may document a change in material facts. This is because the information provided by Dr. Lo addresses the facts which were noted by the UR reviewer as lacking in the prior RFA of June 15, 2023. Therefore, I am recommending that reconsideration be granted, that my decision be vacated, and that the matter be returned to the trial level for further proceedings and decision.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
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