ADJ11449146 · November 27, 2023

Applicant failed to meet the burden of proof by substantial medical evidence to show the medical necessity of the treatment requested in the October 28, 2021 RFA. The evidence was largely boilerplate, non-responsive, and did not incorporate relevant medical reports. Defendant's evidence was more thorough and cured prior defects, outweighing Applicant's evidence.

From the decision · page 5.... Applicant did not sustain his burden of proof in proving medical necessity of the disputed treatment

Applicant did not provide substantial medical evidence addressing the medical necessity of the October 28, 2021 RFA treatment.

Favours Defendant prevailed

Without substantial medical evidence, Applicant failed to meet the burden of proof for medical necessity, leading to denial of the Petition for Reconsideration.

From the decision · page 5.... Applicant did not sustain his burden of proof in proving medical necessity of the disputed treatment

Applicant's medical reports were largely boilerplate, non-responsive, and did not incorporate other medical reports as required by regulation.

Favours Defendant prevailed

This procedural deficiency undermined the credibility and sufficiency of Applicant's evidence to prove medical necessity.

From the decision · page 5The Recon does not direct the undersigned to any substantial reporting of Dr. Patterson, the PTP who issued the RFA, addressing the necessity of the RFA at issue. This further illustrates an issue that the undersigned raised in the Opinion and Decision in that the PTP is not adopting and incorporating the medical reporting generated by Dr. Martinez.9 Notwithstanding substantive

Defendant's additional Peer Review report addressed prior defects and provided a more thorough review of medical records.

Favours Defendant prevailed

This strengthened Defendant's position and outweighed Applicant's evidence, supporting denial of medical necessity.

From the decision · page 8Since the prior R&R discussed the merits of Defendant's evidence and the Order Granting directed the parties to engage in discovery, the undersigned will provide a brief discussion of that as well. Defendant obtained a more detailed Peer Review report subsequent to the prior proceedings.9 The report reviews additional medical records, addresses MTUS-ACOEM concerns, and still maintains the prior conclusions. It appears that this report "cures" the previously identified defects. The undersigned notes that it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions.10

Issued the October 28, 2021 Request for Authorization (RFA) for medical treatment. Did not provide substantial or well-reasoned medical reports addressing the necessity of the RFA. Did not incorporate other medical reports as required by regulation.

The WCJ noted that Dr. Patterson's reports were largely boilerplate and non-responsive to the mandate to develop the record, and did not incorporate other reports, violating regulations.

From the decision · page 5The Recon does not direct the undersigned to any substantial reporting of Dr. Patterson, the PTP who issued the RFA, addressing the necessity of the RFA at issue. This further illustrates an issue that the undersigned raised in the Opinion and Decision in that the PTP is not adopting and incorporating the medical reporting generated by Dr. Martinez.9 Notwithstanding substantive

Provided reports citing MTUS-ACOEM guidelines but did not address the medical necessity of the treatment in the October 28, 2021 RFA in detail. Reports were not incorporated by the PTP.

Reports were not incorporated by the PTP and did not address the specific RFA treatment, thus not persuasive or substantial evidence for medical necessity.

From the decision · page 8Even in evaluating the procedural deficiencies above, the undersigned has concerns present with the substance of the Applicant's evidence. It is well established that the MTUS-ACOEM guidelines are presumed correct.7 As noted in previous proceedings, the Applicant's evidence was lacking in MTUS-ACOEM citations and justification. Any new report submitted by the Applicant's PTP, Dr. Patterson, appears to largely be boilerplate and non-responsive to the Order Granting's mandate to develop the record. Applicant introduces the report of Dr. Sandra Martinez containing many citations to MTUS-ACOEM, but the undersigned again notes that this report is not incorporated by the PTP nor does the report seemingly address the medical necessity of the underlying treatment in any great detail.8

Labor Code section 4610

Utilization Review (UR) process under Labor Code section 4610 requires review and approval of medical treatment based on medical necessity.

The UR process governs the approval or denial of medical treatment requests such as the October 28, 2021 RFA.

From the decision · page 1The utilization review (UR) process is mandated by section 4610, which is defined as the function that "prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, as defined in Section 3209.3, prior to, retrospectively, or concurrent with the provision of medical treatment services pursuant to [Labor Code]2 Section 4600." (Lab. Code, § 4610(a).)

Labor Code section 4604.5

Medical necessity must be proven by substantial medical evidence consistent with Labor Code section 4604.5.

Applicant bears the burden to prove medical necessity of treatment by substantial medical evidence.

From the decision · page 2In Dubon v. World Restoration, Inc., (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc) (Dubon II), we reiterated that if a UR denial is untimely, the determination of medical necessity of the disputed medical treatment may be made by the Workers' Compensation Appeals Board (WCAB) based on substantial medical evidence consistent with section 4604.5. (See also State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 240- 241, 242 (73 Cal.Comp.Cases 981] [injured worker bears the burden of proof to show that medical treatment is reasonably required].) As noted by the WCJ in the Report, defendant does not dispute the WCAB's jurisdiction to determine the medical necessity of the October 28, 2021 Request for Authorization (RFA) issued by primary treating physician David Patterson, M.D.

Labor Code section 3202.5

Preponderance of the evidence standard applies to proving medical necessity under Labor Code section 3202.5.

Applicant must prove medical necessity by a preponderance of the evidence, weighing opposing evidence as well.

From the decision · page 5An untimely UR does not mean that the Applicant is automatically entitled to the requested treatment. Applicant must still meet his burden of proof by a preponderance of the evidence to demonstrate that the treatment requested is medically necessary.2 This burden is sustained by presenting substantial medical evidence.3 It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions.4

Applicant's evidence lacked citations to MTUS-ACOEM guidelines and justification for medical necessity.

From the decision · page 8Even in evaluating the procedural deficiencies above, the undersigned has concerns present with the substance of the Applicant's evidence. It is well established that the MTUS-ACOEM guidelines are presumed correct.7 As noted in previous proceedings, the Applicant's evidence was lacking in MTUS-ACOEM citations and justification. Any new report submitted by the Applicant's PTP, Dr. Patterson, appears to largely be boilerplate and non-responsive to the Order Granting's mandate to develop the record. Applicant introduces the report of Dr. Sandra Martinez containing many citations to MTUS-ACOEM, but the undersigned again notes that this report is not incorporated by the PTP nor does the report seemingly address the medical necessity of the underlying treatment in any great detail.8

Applicant's medical reports were largely boilerplate, non-responsive, and did not incorporate other medical reports as required by regulation.

From the decision · page 5The Recon does not direct the undersigned to any substantial reporting of Dr. Patterson, the PTP who issued the RFA, addressing the necessity of the RFA at issue. This further illustrates an issue that the undersigned raised in the Opinion and Decision in that the PTP is not adopting and incorporating the medical reporting generated by Dr. Martinez.9 Notwithstanding substantive

Defendant's additional Peer Review report addressed prior defects and provided a more thorough review of medical records, supporting denial of medical necessity.

From the decision · page 8Since the prior R&R discussed the merits of Defendant's evidence and the Order Granting directed the parties to engage in discovery, the undersigned will provide a brief discussion of that as well. Defendant obtained a more detailed Peer Review report subsequent to the prior proceedings.9 The report reviews additional medical records, addresses MTUS-ACOEM concerns, and still maintains the prior conclusions. It appears that this report "cures" the previously identified defects. The undersigned notes that it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions.10