ADJ10946749 — California WCAB decision

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.

LiensApplicant prevailedteeth · dental

Defendants did not reserve the right to retrospective utilization review by issuing a written decision as required by regulation; Dr. Schames' dental reports were the only expert dental evidence and constituted substantial evidence of industrial causation and medical necessity; the reasonable value of services was established by unrebutted expert testimony and study.

The facts that decided it

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

Defendants did not issue a written decision reserving the right to retrospective utilization review within five business days of the first RFA from Dental Trauma Center.

Favours Applicant prevailed

Failure to comply with regulatory requirements precluded retrospective UR defense.

From the decision · page 6Based on the requirements of this section, it was found that defendants are not entitled to retrospective utilization review, because there is no evidence that defendants reserved this right by issuing a written decision that complies with subsections (A) through (E) of Section 9792.9(b)(1) within five business days of receipt of the first Request for Authorization (RFA) from the Dental Trauma Center, dated April 20, 2018, which was admitted into evidence as Lien Claimant's 5. There is similarly no evidence of a written decision that complies

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.

AMEGiven great weight · orthopedics

Found industrial injury to lumbar spine and left shoulder; deferred to dental specialist regarding dental injury; did not note dental complaints at time of evaluation.

His orthopedic findings supported industrial injury to back and shoulder, but he deferred to a dental specialist for dental injury, and his lack of dental findings did not rebut the dental expert's opinion.

From the decision · page 7With respect to post-termination evidence of a compensable cumulative trauma injury, the reports of orthopedic AME Dr. Feiwell are entitled to great weight due to his presumed expertise and neutrality as an agreed medical expert. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775). Dr. Fiewell found industrial injury in the form of a cumulative trauma to the lumbar spine and left shoulder, and although he did not note applicant reporting any dental complaints at the time of his orthopedic evaluation, Dr. Fiewell wrote that he would "have to defer to the appropriate specialist in the field of dentistry regarding whether applicant has a dental injury," (AME Report of Dr. Feiwell dated November 19, 2019, admitted as Court's Y, p. 2, line 5). Based on the fact that Dr.

otherRelied upon · dentistry

Found secondary dental injury (bruxism, xerostomia, periodontal disease) industrially caused; opined treatment and evaluation by Dental Trauma Center was medically necessary; linked dental conditions to industrial pain and medication use.

His reports were the only dental expert evidence, provided substantial medical evidence of causation and necessity, and were not rebutted by non-dental providers.

From the decision · page 4Schames' reports constitute substantial medical evidence on the issue of causation of dental injury by reasonably linking bruxism to industrial pain symptoms, and linking periodontal disease from xerostomia to taking Advil for industrial pain symptoms as a matter of reasonable medical probability (Opinion on Decision, May 21, 2021, p. 3, lines 11-14). The opinion explained that inconsistent reporting of dental symptoms in the reports of non-dental physicians and chiropractors is insufficient to rebut the reasonable and probable indication of Dr. Schames that applicant had orthopedic pain, took Advil for it, and developed dental symptoms through the mechanisms explained by Dr. Schames (Id., p. 3, lines 14-17).

The rules the panel named

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

California Code of Regulations, Title 8, Section 9792.9(b)

Deferral of utilization review requires a written decision by the claims administrator within five business days of receipt of the first Request for Authorization, as outlined in AD Rule 9792.9(b).

Defendants did not issue a written decision reserving the right to retrospective utilization review, so they were not entitled to it.

From the decision · page 6Based on the requirements of this section, it was found that defendants are not entitled to retrospective utilization review, because there is no evidence that defendants reserved this right by issuing a written decision that complies with subsections (A) through (E) of Section 9792.9(b)(1) within five business days of receipt of the first Request for Authorization (RFA) from the Dental Trauma Center, dated April 20, 2018, which was admitted into evidence as Lien Claimant's 5. There is similarly no evidence of a written decision that complies

McCoy v. I.A.C. (1966) 64 Cal.2d 82, 87 [31 Cal.Comp.Cases 93]

Employer must reimburse employee for self-procured medical treatment if employer neglects or refuses to provide necessary treatment.

If defendant failed to provide necessary treatment, reimbursement is required.

From the decision · page 1Administrative director (AD) Rule 9792.9(b) permits deferral of utilization review (UR) if "the claims administrator disputes liability for either the occupational injury for which the treatment is recommended or the recommended treatment itself on grounds other than medical necessity." (Cal. Code Regs., tit. 8, § 9792.9(b); see also Lab. Code, § 4610(l)-(m).) We agree with the WCJ that if defendant wished to defer UR of the requests for authorization for treatment from the Dental Trauma Center in order to later conduct retrospective UR, it was obligated to send a written decision deferring UR as outlined in AD Rule 9792.9(b). It is emphasized that deferring UR would not necessarily preclude Dental Trauma Center's lien claim in this matter as there would remain issues regarding defendant's liability for self-procured medical treatment. (See McCoy v. I.A.C. (1966) 64 Cal.2d 82, 87 [31 Cal.Comp.Cases 93] ["the employer is required to provide treatment which is reasonably necessary to cure or relieve the employee's distress, and if he

Labor Code section 4603.2(b)(1)

Reasonable value of services must be increased by 15%, plus 10% annual interest, if there is no timely payment or explanation of review within 45 days of receipt of bill.

Defendants did not timely pay or explain, so increase and interest applied.

ADJ10946749 · October 5, 2022

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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