ADJ16099603 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board denied the petition for reconsideration, affirming the WCJ's decision to authorize the requested surgery and finding the utilization review decision untimely.

Defendant filed a timely petition for reconsideration of the WCJ decision dated February 1, 2024, challenging the timeliness of the utilization review decision and the reasonableness of the requested surgery.

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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.

Medical treatment / UR / IMRApplicant prevailedleft shoulder

The Board found Dr. Schwartz's justification for the requested surgery adequate and ordered it authorized, especially since the untimely UR decision was inadmissible.

From the decision · page 9This leaves the question of the reasonableness of the surgery. An untimely UR decision is inadmissible in evidence, Sandhagen, supra. Without considering the QME report, that leaves the reporting by Dr. Schwartz and an orthopedic consultant Dr. Daniel Haber, who does not recommend surgery, but whose report of May 8, 2023, was not offered in evidence. On balance, having reviewed the entirety of the actual evidentiary record, I believe Dr. Schwartz has adequately justified the procedure he has requested. I have ordered that it be authorized.

The facts that decided it

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

The request for authorization for surgery was conveyed to defendant before December 13, 2023.

Favours Applicant prevailed

This made the utilization review decision dated December 20, 2023 untimely, allowing the Board to adjudicate the medical issue.

From the decision · page 4Defendant acknowledges that the RFA was dated August 8, 2023. It also cites applicant's correspondence to the QME, on October 16, 2023, indicating that a surgical request by Dr. Schwartz was then pending. Then came Dr. Lockwood's report, dated November 17, 2023, and quoted above. It would appear that, even if defendant was not, during that period, in possession of the actual RFA, by all of those indications, defendant was on notice that the treating physician was recommending further surgery. Its general duty to "conduct a reasonable and timely investigation" with respect to applicant's entitlement to that medical treatment is rooted in California Code of Regulations, Title 8, section 10109. It does not appear that this defendant undertook such an investigation. My conclusion after trial: "In sum, I find it reasonable to infer that December 13, 2023, was not the first date on which the request for authorization was conveyed to this defendant, and therefore that the UR decision was untimely."

Dr. Schwartz adequately justified the requested surgery procedure.

Favours Applicant prevailed

The Board relied on this justification to authorize the surgery, especially since the UR decision was inadmissible due to untimeliness.

From the decision · page 9This leaves the question of the reasonableness of the surgery. An untimely UR decision is inadmissible in evidence, Sandhagen, supra. Without considering the QME report, that leaves the reporting by Dr. Schwartz and an orthopedic consultant Dr. Daniel Haber, who does not recommend surgery, but whose report of May 8, 2023, was not offered in evidence. On balance, having reviewed the entirety of the actual evidentiary record, I believe Dr. Schwartz has adequately justified the procedure he has requested. I have ordered that it be authorized.

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.

PTPRelied upon · Orthopedic Surgeon

Justified the requested arthroscopic evaluation surgery with debridement and possible subacromial decompression.

From the decision · page 9This leaves the question of the reasonableness of the surgery. An untimely UR decision is inadmissible in evidence, Sandhagen, supra. Without considering the QME report, that leaves the reporting by Dr. Schwartz and an orthopedic consultant Dr. Daniel Haber, who does not recommend surgery, but whose report of May 8, 2023, was not offered in evidence. On balance, having reviewed the entirety of the actual evidentiary record, I believe Dr. Schwartz has adequately justified the procedure he has requested. I have ordered that it be authorized.

QMERelied upon · Chiropractor

Concluded applicant remains temporarily totally disabled pending the requested surgery and supported proceeding with surgery.

Aware of the request for surgery and the mandatory utilization review process, indicating the need for surgery.

From the decision · page 8I note the presence of a report dated November 17, 2023, by Rex Lockwood, D.C., serving in the capacity of qualified medical evaluator (QME), and concluding that the applicant remains temporarily, totally disabled (TTD) pending the surgery that had been requested: "One of the key issues in this case appears to be the MMI/P&S [maximum medical improvement/permanent and stationary] status, with there having been a recommendation for further arthroscopic surgery to determine the source of the patient's continuing complaints, these resulting in a continuing TTD status...[The primary treating physician] has asserted what appears to be viable reasoning for further arthroscopic search for the source of his ongoing rather pronounced functional

otherNot substantial evidence · Orthopedic Consultant

Did not recommend surgery; report dated May 8, 2023, was not offered in evidence.

From the decision · page 9This leaves the question of the reasonableness of the surgery. An untimely UR decision is inadmissible in evidence, Sandhagen, supra. Without considering the QME report, that leaves the reporting by Dr. Schwartz and an orthopedic consultant Dr. Daniel Haber, who does not recommend surgery, but whose report of May 8, 2023, was not offered in evidence. On balance, having reviewed the entirety of the actual evidentiary record, I believe Dr. Schwartz has adequately justified the procedure he has requested. I have ordered that it be authorized.

ADJ16099603 · August 6, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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