What the panel ordered
The WCAB affirmed the WCJ's December 30, 2019 Findings and Award, holding that defendant's UR determination was untimely and invalid, and that applicant is entitled to continuing outpatient rehabilitation services until no longer reasonably required.
Defendant sought reconsideration of the Findings and Award issued by a WCJ on December 30, 2019, which found applicant sustained an industrial injury and awarded continuing outpatient rehabilitation services due to defendant's improper service of the UR determination.
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 and WCAB found that defendant's UR determination was untimely and invalid, giving the WCAB jurisdiction to determine medical necessity. Substantial medical evidence, including Dr. Patterson's reports and team conference notes, supported the need for continuing outpatient rehabilitation until no longer reasonably required.
From the decision · page 1We granted reconsideration to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Defendant sought reconsideration of the Findings and Award issued by a workers' compensation administrative law judge (WCJ) on December 30, 2019. The WCJ found that applicant, while employed on October 13, 2017, as a production line worker, sustained an admitted industrial injury to her head and brain. The WCJ also found that defendant's improper service of the Utilization Review (UR) determination renders it invalid, and the determination of medical necessity for the treatment may be made by the Appeals Board. The WCJ found defendant is liable for continuing applicant's outpatient physical rehabilitation, consisting of transitional living center day treatment, transportation, and interpreter services, until they are no longer reasonably required pursuant to Labor Code section 4600.1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Substantial medical evidence, including Dr. Patterson's reports and team conference notes, demonstrated ongoing cognitive, visual, and emotional deficits requiring continued outpatient rehabilitation.
Favours Applicant prevailed
Supported the finding that continuing treatment was reasonable and necessary medical care.
From the decision · page 5In this case, as discussed by the WCJ in his Report, there is substantial medical evidence in the record to support a finding that applicant's continuing treatment at Casa Colina is reasonable medical treatment. In addition to Dr. Patterson's reporting, he team conference notes demonstrate the medical need for applicant's continued treatment in the outpatient rehabilitation program at Casa Colina. (Applicant's Exhibits 4 and 5.) We note that when continuing medical treatment is provided by a treating physician, a progress report shall be made no later than forty-five days from the last report. (Cal. Code Regs., tit. 8, § 9785(f)(8).)
Defendant's UR determination was served to an incorrect suite number and was untimely, rendering it invalid and giving the WCAB jurisdiction to determine medical necessity.
Favours Applicant prevailed
This procedural defect allowed the WCJ and WCAB to exercise jurisdiction and award continuing treatment.
From the decision · page 3Defendant attempted to serve the July 16, 2019 UR determination on applicant's attorney. However, it was served to an incorrect suite number and was not received at applicant's attorney's office. (8 Cal. Code Regs. § 9792.9.1; Cal. Code Civ. Pro. § 1013(a).2
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. Patterson opined that applicant requires continued participation in the multi-disciplinary neuro-rehabilitation program to make further improvements and sustain progress, supported by medical reports and team conference notes.
Supported by substantial medical evidence and team conference notes demonstrating ongoing cognitive, visual, and emotional deficits requiring continued treatment.
From the decision · page 2FACTS Applicant, while employed on October 13, 2017, as a production line worker, sustained an industrial injury to her head and brain. Applicant was taken to Glendora Community Hospital where a CT scan of her head revealed a diffuse soft tissue injury. She was diagnosed with post- concussion syndrome and received stitches for her forehead laceration, before she was discharged home. Upon returning home, applicant experienced severe headaches, photophobia, nausea, and vomiting. Applicant's primary treating physician is David Patterson, M.D., who specializes in physical medicine and neuro-rehabilitation. He is the medical director at Casa Colina Hospital Transitional Living Center (Casa Colina). Beginning December 11, 2018, applicant was admitted for outpatient care at Casa Colina, pursuant to the recommendations of Dr. Patterson and defendant's UR determinations. In December 2018, Dr. Patterson submitted an RFA requesting outpatient physical rehabilitation, five hours a day for four weeks.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Dubon II)
If a UR decision is untimely, it is invalid and not subject to IMR; the Appeals Board has jurisdiction to determine medical necessity.
The WCJ correctly determined the UR was invalid due to untimely service and exercised jurisdiction to award continuing treatment.
From the decision · page 4In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if a UR decision is untimely, the UR decision is invalid and not subject to independent medical review (IMR). The Dubon II decision further held that the Appeals Board has jurisdiction to determine whether a UR decision is timely. (Id.) If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board. (Id. at p. 1300.) Subsequent to Dubon II, in a significant panel decision, the Appeals Board held that a UR decision that is timely made, but is not timely communicated, is untimely. (Bodam v. San Bernardino County/Dept. of Social Services (2014) 79 Cal.Comp.Cases 1519.)3 In this case, the WCJ correctly determined that the UR was
Labor Code section 4600
Medical treatment reasonably required to cure or relieve the injured worker from the effects of the injury must be provided under Labor Code section 4600.
The WCJ and WCAB found substantial medical evidence supported continuing outpatient rehabilitation as reasonable and necessary treatment.
From the decision · page 5The WCJ properly exercised his jurisdiction over this matter, yet applicant is not automatically entitled to the requested treatment. Applicant must still meet her burden to prove the treatment she requested is medically necessary. (Lab. Code § 5705, 3202.5.) "[A]ll parties, including injured workers, must meet their burden of proof on all issues by a preponderance of the evidence." (Sandhagen v. Workers' Comp. Appeals Bd. (2008) 73 Cal. Comp. Cases 981, 990.) To carry this burden, the injured worker must present substantial medical evidence. (Dubon II, 79 Cal. Comp. Cases at 1312.) Section 4600 requires a defendant to provide medical treatment "reasonably required to cure or relieve the injured worker from the effects of his or her injury" if there is a medical recommendation or prescription that there is a "demonstrated medical need" for such services." (Smyers. V. Workers' Comp. Appeals Bd. (1984) 49 Cal. Comp. Cases 454, 458.)
Patterson v. The Oaks Farm, 79 Cal. Comp. Cases 910 (2014)
Unilateral termination of medical treatment previously authorized as reasonably required is contrary to Labor Code section 4600 unless supported by substantial medical evidence.
The WCJ and WCAB applied Patterson to hold that continued treatment is required absent a change in condition or circumstances.
From the decision · page 7In addition to the substantial medical evidence supporting an ongoing need for applicant's continued rehabilitation program, we are persuaded that Patterson also supports the Award of medical treatment in this case. The evidence does not indicate that applicant has improved sufficiently in her cognitive abilities and emotional state so that she no longer requires the outpatient rehabilitation program. (Defendant's Exhibit A.) The outpatient treatment requested for this catastrophically injured applicant is medically necessary, absent a change in circumstances.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's UR determination was served to an incorrect suite number and was untimely, rendering it invalid and giving the WCAB jurisdiction to determine medical necessity.
From the decision · page 3Defendant attempted to serve the July 16, 2019 UR determination on applicant's attorney. However, it was served to an incorrect suite number and was not received at applicant's attorney's office. (8 Cal. Code Regs. § 9792.9.1; Cal. Code Civ. Pro. § 1013(a).2
Medical reports and team conference notes from Casa Colina demonstrated ongoing cognitive, visual, and emotional deficits and the need for continued outpatient rehabilitation.
From the decision · page 5In this case, as discussed by the WCJ in his Report, there is substantial medical evidence in the record to support a finding that applicant's continuing treatment at Casa Colina is reasonable medical treatment. In addition to Dr. Patterson's reporting, he team conference notes demonstrate the medical need for applicant's continued treatment in the outpatient rehabilitation program at Casa Colina. (Applicant's Exhibits 4 and 5.) We note that when continuing medical treatment is provided by a treating physician, a progress report shall be made no later than forty-five days from the last report. (Cal. Code Regs., tit. 8, § 9785(f)(8).)
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