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Ramirez (Daniel) v. Workers’ Compensation Appeals Board (Court of Appeal, published) 82 C.C.C. 327

Applicant sustained an injury to his lower leg and ankle in the course of his employment for the State Department of Health Care Services. Applicant settled this case by way of Stipulations with Request for Award which provided for future medical treatment. The treatment included a gym/swim membership, and, over the course of about 1½ years, 12-24 sessions of acupuncture were authorized.

In July 2014, applicant’s physician prescribed 12 sessions of acupuncture. The utilization review recommended the treatment be denied. The reviewer’s rationale in denying the treatment was that acupuncture is recommended as a short-course treatment in conjunction with other interventions for a total of up to 8 to 12 visits over 4 to 6 weeks, where there is evidence of reduced pain and medication use, and there is functional improvement. The reviewer stated the applicant had completed the maximum number of recommended therapy sessions, thus the request was not reasonable.

The applicant appealed the utilization review denial under the independent medical review (IMR) process. The independent medical reviewer noted the applicant had 24 prior acupuncture sessions approved and there had been no change in his work restrictions or functional improvement for almost a year. The independent medical reviewer denied the requested treatment and stated that, according to evidence-based guidelines, further authorization for visits after initial trial are medically based on documented functional improvement. The claimant had at least 24 acupuncture visits approved in the last year. Due to the lack of objective functional improvement and decreased dependence on medical treatment, further acupuncture was not medical necessary.

The applicant appealed the decision to the Board. The grounds for appeal were that the independent medical reviewer may have been subject to a material conflict of interest and the determination may have been the result of bias on the basis of race, national origin, ethnic identification, religion, age, sex, orientation, color or disability. The applicant wanted discovery to determine whether the doctor performing the IMR was biased or had a conflict of interest. The appeal also argued the denial was materially defective because it failed to show the medical treatment utilization schedule.

The applicant argued the material defect was equivalent to an untimely utilization review, which could be appealed to the appeals Board under Dubon II. The applicant argued the IMR doctor had improperly made credibility judgments about the applicant physician’s report. To the extent that the Board was prevented from disclosing the identity of the doctor who did the review, applicant raised constitutional challenges including but not limited to denial of his right to substantive and procedural due process. The applicant understood the appeals Board could not rule on constitutionality of Labor Code provisions, however, applicant raised this issue to preserve his appeal. The appeal was ordered taken off calendar at the request of the defendant because the applicant wanted only to raise the constitutional issue, over which the Board could not review.

The applicant filed a petition for removal or reconsideration of order taking matter off calendar. A Workers’ Compensation Judge reviewed the petition and recommended the petition for reconsideration be dismissed or denied. A petition for removal must be based on the grounds that the order will result in significant prejudice or irreparable harm. The WCJ found neither existed. The WCJ further found that there was no legal basis for the constitutional challenge because the Board had no power to declare statutes unconstitutional.

The WCAB dismissed the reconsideration petition because it was from an order taking the matter off calendar, which was not a final order. The Board found the petition for removal was subject to denial because an order taking a matter off calendar does not result in substantial prejudice or irreparable harm. Nevertheless, because the petition for removal raised only constitutional issues that the Board had no authority to resolve, the court granted removal to give the applicant a final order for purposes of review. The applicant filed a petition for writ of review.

The question presented was did the Board have jurisdiction to review an IMR on the grounds that the underlying utilization review did not use the medical treatment utilization schedule, a question answered in the negative by statute.

In Dubon II, the WCAB concluded that a utilization review determination is invalid only if it is untimely. If a utilization review decision is untimely, it is invalid, and is not subject to IMR. A dispute over the timeliness of the utilization review decision is a legal dispute within the Board’s jurisdiction, but all other disputes regarding the utilization review decision must be resolved by IMR. If the Board determines that a utilization review decision is untimely, the Board may determine the medical necessity of the proposed treatment based on substantial medical evidence.

The applicant challenged the Board’s opinion in Dubon II, arguing that the Board has jurisdiction over utilization reviews that are both untimely and procedurally deficient. The argument of the applicant that the Board has jurisdiction in this case is his assertion that the utilization review doctor did not follow the medical treatment utilization schedule, thus did not follow the proper procedure.

In this case, the applicant’s utilization review was timely. Nevertheless, the applicant asserted that the Board had jurisdiction over his utilization review because it was materially defective.

If a utilization review decision denies or modifies a treatment recommendation based on medical necessity, the employee may request IMR. A utilization review decision may be reviewed or repealed only by IMR pursuant to section 4610.5. The statute provides no exception for materially defective utilization review. The Legislature provided only one method for review or appeal of utilization review, that is by IMR. Thus, the Board had no jurisdiction in this case to review the utilization review decision.

The Court of Appeal found the applicant had no claim that the Board has jurisdiction on one of the grounds allowing review of IMR set forth in the Labor Code. To the extent the Board has jurisdiction to review utilization review, it only has jurisdiction over nonmedical issues such as timeliness. Any question that has the effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of IMR. The Labor Code provides that in no event shall a “workers’ compensation administrative law judge, the appeals Board, or any higher court make a determination of medical necessity contrary to the determination.” Whether the reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by IMR.

The task of determining whether the denial was in compliance with the medical treatment utilization schedule was appropriately delegated to the independent medical reviewer, who was better able to determine whether the medical treatment utilization schedule was followed.

The statutory scheme presumes that the mistake will be corrected by IMR because the IMR is also required to be based on the medical treatment utilization schedule.

In this case, the independent medical reviewer specifically noted that the decision was based on the medical treatment utilization schedule. The rationale for the independent medical reviewer’s denial was that further treatment was not medically necessary because there had been no functional improvement. Applicant’s attorney also argues that a medically defective utilization review is an untimely review over which the Board has jurisdiction. The Court of Appeal rejected this argument. There was no dispute over the fact utilization review was performed within the statutory time frame.

The Court of Appeal concluded the Board had no jurisdiction to review utilization review that was alleged to be defective for failure to follow the medical treatment utilization schedule. Whether the utilization review followed the medical treatment utilization schedule is directly related to a determination of medical necessity. By Statute, review of a determination of medical necessity is limited to the medical professionals performing the IMR.

The Board properly dismissed the petition for reconsideration because it had no power to determine whether the utilization review was materially defective and the applicant did not state a proper ground for appeal of the IMR to the appeals Board. The Court of Appeal went on to find that IMR did not violate the state separation of powers and due process of law. The Court of Appeal agreed with the decision in Stevens v. WCAB (241 Cal App 4th 1074). The court also concluded that IMR did not violate federal procedural due process. The order of the WCJ taking the matter off calendar was reversed. The WCJ was directed to issue an order consistent with this decision.

Stevens v. Outspoken Enterprises, Inc. (BPD) (45 WCR 147)

The WCJ, upheld by the WCAB, held that the Appeals Board lacked the power to review an IMR determination of medical necessity absent a showing by clear and convincing evidence that establishes the grounds for appeal under one or more of the five categories listed in Labor Code §4610.6(h).  The WCAB further agreed with the WCJ that they had no authority to determine the constitutionality of the IMR statutes which was raised as an issue by applicant.

The applicant filed a Petition for writ of review which was granted by the Court of Appeal

The Court of Appeal upheld the constitutionality of the IMR statutes. The Court of Appeal held that the Appeals Board applied the wrong standard of review of an IMR determination and the that the WCAB had considerable authority to review both factual and legal questions in determining whether an IMR determination was adopted without authority or is based on a plainly erroneous fact not subject to expert opinion.

The matter was returned to the WCAB on remittitur from the Court of Appeal, following the Order of the California Supreme Court denying applicants Petition for Review and the Order of the Supreme Court of the United States denying applicants Petition for Writ of Certiorari.

The decision of the Court of Appeal remanded the matter to the Appeals Board to consider whether the applicant’s request for housekeeping and personal services was denied without authority.

The WCAB on remand held the MTUS is based upon the application of evidence-based medicine to ensure that clinical decision making is guided by the integration of the best available research evidence with clinical expertise and patient values.

At issue in this case was the 2009 Guideline, which was applied by the IMR reviewer to determine the medical necessity of the RFA for home healthcare aid.

The guideline provided that medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health care aides like bathing, dressing and using the bathroom when this is the only care needed.

The WCAB concluded that the Independent Medical Review determination upholding the denial of the request for a home health aide was adopted without authority by the administrative director because the portion of the 2009 medical treatment utilization schedule/chronic pain medical treatment guideline applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long-standing worker’s compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury. (Smyers v. WCAB, 49 CCC 454).

Therefore, the WCAB concluded that the 2009 guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by the applicant.

Because the guideline is contrary to California law and is invalid, the presumption of correctness could not apply.

Once the Guideline was found invalid, the WCAB than noted that the requested treatment may be authorized based on recommendations outside of an MTUS guideline where the MTUS presumption of correctness has been controverted by a preponderance of scientific medical evidence establishing that the treatment is reasonable necessary to cure or relief from the effects of the industrial injury.

The WCAB further noted that in the review of the utilization review decision, expert opinion may be considered in the determination of whether a requested mode of treatment is medically necessary.

In this case the IMR determination relied on a guideline that is invalid and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment.

The WCAB concluded that the administrative director exceeded her authority when she adopted the IMR determination in this case.

Because this conclusion is contrary to the WCJ’s finding that the administrative director had not exceeded her authority when she adopted the IMR determination, the WCAB rescinded the WCJ’s finding and order denying applicant’s IMR appeal and returned the matter to the trial level for further proceedings in accordance with the decision.

The WCAB further noted that in this case the medical evidence supporting the applicant’s need for home healthcare appears to be compelling. Nevertheless, the appeals Board was precluded from determining the medical necessity of a home healthcare need in this case.

On remand to the WCJ the WCAB recognized that the 2009 guideline has been revised since the court issued its decision in this matter, and the current guideline includes home healthcare services. However, the scope of the Board’s determination is limited to the present record and the 2009 guideline, as it is the version that applied in the proceedings below and reviewed by the court.

While the WCAB did not consider the merits of the effect of the current guideline, they recognize that it may be applied by a different IMR reviewer in the event there is a remanded to the administrative director.

The WCJ may determine whether further hearing is necessary on issues not reached herein, and can consider whether, given the passage of time, further development of the record may be necessary. In the event the WCJ finds that the administrative director determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to Labor Code §4610.6 (i).

Rodriguez v. Simi Valley Unified School District (BPD) 45 CWCR 19

The treating physician submitted an RFA for a home healthcare evaluation and a request for home healthcare services. The treating physician requested an evaluation regarding home healthcare assistance that was denied by UR. Parties disputed whether an evaluation regarding home healthcare assistance was subject to utilization review.

The WCAB found that Labor Code §4600 (h) requires that home healthcare should be treated like any other form of treatment. The WCAB found no distinction between the UR requirements for an evaluation for medical treatment and actual provision of medical treatment. The WCAB concluded that because the requested evaluation of home healthcare assistance constituted medical treatment, it was subject to the UR process.

Labor Code §§4600 and 4610 define medical treatment and the scope of UR, respectively. Section 4600 contains a broad definition of medical treatment, referring to many treatment modalities that are reasonably required to cure or relieve the injured worker from the effects of the industrial injury.  Moreover, §4600 specifically addresses home healthcare services and does not differentiate it from other forms of medical treatment. Labor Code §4610 applies to medical treatment requests made pursuant to §4600 and uses the same medical necessity languages as in §4600. A request for home healthcare evaluation comes logically within the plain language of the statute with their inclusion of home healthcare and medical necessity.

To differentiate evaluation requests (such as those for x-rays, not in and of themselves treatment for any medical condition) from treatment requests, would place them outside the scope of UR.

There have been numerous determinations that medical imaging and certain specialist evaluations to determine scope of treatment are subject to UR. In sum, determining whether this proposed regime (home healthcare) is appropriate is no less medical treatment than actual implementation of the regimen itself.

Further, since the request was subject to UR and UR timely denied it, IMR became the dispute resolution mechanism and the WCJ lacked jurisdiction to address the dispute. The WCAB in a footnote to the decision indicated that a home healthcare evaluation could be a medical-legal expense, rather than treatment, but did not believe the request at issue was a medical-legal expense.

Vargas V. Barrett Business Services (BPD) (45 CWCR 234): (QME)

Applicant sustained an industrial injury to her neck and right wrist as a result of continuous trauma and alleged multiple other body parts.

The applicant was seen by a panel Qualified Medical Valuator in internal medicine. The internist deferred the issue of causation of applicant’s abdominal symptoms to a Qualified Medical Evaluator in gastroenterology, her headaches to a QME in otolaryngology (ENT) and her insomnia until review of the requested sleep study.

The WCJ denied applicant’s request for additional panels, the WCJ requested hearing, for which, applicants primary treating physician issued what was termed a medical-legal report recommending GERD to a gastroenterologist and for a sleep study all of which had been recommended by the PQME. The WCJ took the matter off calendar.

The applicant filed a petition for removal.

The WCAB denied removal because the order taking the case off calendar did not cause irreparable harm since the applicant can file another declaration of readiness to proceed to get the case back on calendar. Additionally, the panel noted that the recommendations of both the PQME and the PTP about additional evaluations and agree that dispute might be more expeditiously resolved those evaluations took place before resort to the Board.

If further action of the Appeals Board was required, all issues relating to obtaining further medical-legal evaluations should be tried together. The panel cited Labor Code §4060 (b) and noted that while a primary treating physician’s treatment request are subject to utilization review, a primary treating physician may also perform a comprehensive medical-legal evaluation and associated medical-legal expenses are not subject to utilization review.

Applicants attorney requested a hearing on the issue of entitlement to additional panels. Defendant objected, arguing the referrals by the treating physician were subject to UR/IMR.

The WCJ after trial ruled that the request for referral to a gastroenterologist, ENT specialist and for a sleep study constituted medical treatment for referrals subject to UR and as such the Board did not have the power to make such referrals.

The parties also raise the question of whether such referrals may be made outside defendants medical provider network, a point made by the judge’s decision.

Applicant filed a petition for reconsideration or removal.

The WCAB reiterated that an employer is required to reimburse medical-legal expenses incurred for the purpose of proving or disproving a contest claim.

The panel concluded that the referrals in this case were not for medical treatment since they involve disputed body parts, and observed that the Primary Treating Physician had referred to the PQME’s report recommending additional panels to determine whether applicant sustained an industrial injury to those body parts.

While the panel agreed that the treating physician must perform a comprehensive medical-legal evaluation in order for evaluations by other physicians to be recoverable as medical-legal expenses, it is not correct that the evaluations must be performed for those expenses can be incurred.

Pursuant to Labor Code §4061.5, the PTP is charged with rendering opinions on all medical issues needed to determine eligibility for compensation and to incorporate other treating physician’s findings into his or her port.

Pursuant to Rule 9793(h) medical-legal expenses include the cost of medical evaluations, diagnostic tests and interpreters if it is incident to the production of comprehensive medical-legal evaluation Board.

Taking the relevant statutes and regulations together, the panel observed that a comprehensive medical-legal evaluation is often produced after the medical-legal expense is incurred.

Panel noted the WCJ was incorrect in his assessment that the PTP must have produced a medical-legal report before being able to recommend additional medical-legal referrals.

Noting that their prior recommendations that all issues related to obtaining additional evaluations be tried together was ignored, the panel determined that they could not make finding about additional evaluations as that was not an issue raised at trial.

However, the PQME report and the referrals by the PTP provided good cause for the WCJ to order additional QME panels.

The panel ordered the parties to make good faith efforts to resolve their dispute, pointing out there are two tracks for applicant to obtain a medical-legal evaluation of injuries to disputed body parts the PQME track and the treating physician track.

Either party may pursue either track or both tracks.

The panel observed since the PQME and PTP recommended the contested evaluations, there is direct and efficient path to obtain additional panels in the recommended specialties, citing Rule 31.7 (b) and reminding the parties that the primary purpose of worker’s compensation system is to promptly provide an injured worker with payment of benefits, including medical care.

The panel rescinded the WCJ’s F & O and returned the case to the trial level for further proceedings.

Bellah v. McCreery’s (BPD) (LEXIS)

Defendant accepted the claim and provided some benefits.

In May 2017, dispute arose over authorization for medical treatment.

The matter went to trial.

The WCJ issued a Findings and Order that the defendant did not complete utilization review in a timely fashion and therefore the WCAB had jurisdiction over medical treatment per Dobon II.

The defendant filed a petition for reconsideration.

Defendant contended that it timely completed the utilization review process.

The issue involved Regulation 9792.9 .1 (e) (3) which provides as follows:

“For perspective, concurrent, or expedited review, the decision to modify, delay, or deny shall be communicated to the requesting physician within 24 hours of the decision, and shall be communicated to the requesting physician initially by telephone, facsimile, or electronic mail. The communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and if the injured worker is represented by, the injured worker’s attorney within 24 hours of the decision for concurrent review and within two business days for perspective review and for expedited review within 24 hours of receipt of the request.

Defendant contends that within two business days means two days after it sent its denial of certification to the physician.

The WCJ interpret the language to mean within two days of the decision.

If defendants position was correct the service on applicant’s attorney was timely, but the WCJ believed service on applicant’s attorney was two days after the UR was decided not to certify the eye RFA.

The WCAB stated that pursuant to the case of Mulford v. City of Los Angeles (2016 Cal. Wrl. Comp. LEXIS 296 the section requires that notice to applicant’s attorney must be sent no later than two days after the decision by the UR physician.

The position of the defendant extends the time that the UR is completed for one extra business day, a position that runs contrary to the purpose of utilization review.

The Legislature intended utilization review to provide for quality medical care for worker’s  compensation in a prompt and expeditious manner.

As the Legislature intended any extension beyond the minimal time limits set forth, such an extension would have to be explicitly stated in the controlling statutes and regulations.

The petition for reconsideration was denied.

Willoughby v. WCAB (W/D) (82 CCC 1026)

Applicant sustained an admitted industrial injury.

Applicant began treating within the employer’s medical provider network.

The treating physician prescribed various medications and a pain program which were all denied by UR/IMR.

The matter proceeded to trial regarding the issue of the reasonableness of necessity of the requested medical treatment and specifically on the issue whether treatment request by an MPN physician are subject to mandatory IMR pursuant to Labor Code §4610.5

The WCJ awarded the medical treatment, finding that a medical treatment request made by an MPN physician is not subject to mandatory Labor Code §4610.5 IMR and that medical treatment request made by the treating physician were supported by substantial evidence.

The WCAB granted reconsideration and rescinded finding that the treatment proposed by an MPN physician is not subject to UR/IMR and the WCJ’s award of proposed treatment.

The WCAB determined that the Legislature did not exclude MPN treatment from UR/RMR is described in labor code 4610 et seq. and request for authorization to provide medical treatment by an MPN physician is subject to the process.

Because in this case the UR denied authorization for the treatment further dispute was subject to the IMR process.

The WCAB to support their position cited the case of State Comp. v. WCAB (Sandhagen) (73 CCC 980) in which The Supreme Court held that the statutory language indicates the Legislature intended for employers to use utilization process when reviewing and resolving any and all requests for medical treatment.

The WCAB pointed out that the case included no provision exempting MPN providers for me that you are of the IMR process.

Additionally, the WCAB opined that the use of the MTUS and other evidence-based treatment standards as part of the UR/IMR process further evidence the Legislature’s intent to apply uniform standard of reasonable medical treatment grounded in evidence-based, peer-reviewed, nationally recognized standard of care to all medical treatment including treatment by MPN providers.

If the Legislature intended to exempt MPN medical treatment from the UR and IMR is by the WCAB, it would’ve expressly excluded MPN providers and treatment from those statutes, but it did not.

Labor Code §4610 (b) requires every employer to establish a UR process, in section 4610(c) requires the UR policies and procedures shall ensure that decisions based on medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule of medical treatment utilization adopted pursuant to section 4610.5 makes IMR applicable to any dispute over a utilization review decision and requires that such dispute shall be resolved only by IMR. (Dubon, 79 CCC 1298)

Submitting MPN treatment proposals to UR and IMR is consistent with the Legislative goal of assuring by all defendants consistent with evidence-based, peer-reviewed, nationally recognized standards of care.

Commissioner Sweeney, concurring with the panel majority, wrote separately to clarify that, when an MPN treating physician makes a diagnosis or proposes a course of treatment, there are two separate statutory tracks to dispute that recommendation, the UR/IMR dispute resolution process and the MPN IMR process depending on which party raises a dispute with an MPN physician’s medical treatment recommendation. The first processes triggered by the employer’s objection to a medical treatment determination and the latter by the employee’s objection to an MPN medical treatment determination. The Commissioner explained that since this case involved the employer’s objection to a treatment recommendation by the MPN treating physician the dispute is subject to UR/IMR process which applies to all treating physicians regardless of whether the employer utilizes an MPN to satisfy its obligation to provide reasonable medical treatment.  In contrast, when an employee disputes the treatment recommendation of an MPN Dr., the process is governed by labor code 4616.3 and 4616.4 and regulation 9768.1 et seq. Sweeney noted that the two IMR process are not interchangeable and are not mutually exclusive. Both may address the denial of medical treatment, but the regulatory procedural requirements differ significantly for each.

Applicants petition for writ of review was denied