ADJ17686288 · May 7, 2025

The WCAB panel found that the WCJ had jurisdiction to order continuing treatment at the Centre for Neuro Skills despite a timely utilization review denial, relying on the Patterson line of cases and rejecting the defendant's jurisdiction argument based on the timely RFA denial. The panel also found insufficient substantial medical evidence to discontinue treatment, crediting the treating physician Dr. Prasad's recommendations over the utilization review physician Dr. Gart's denial.

From the decision · page 3II. With respect to the assertion by petitioner that the WCJ's Award "far exceeds" the treatment recommendations of the request for authorization (RFA) from applicant's primary treating physician, Vibhay Prasad, M.D. (Petition, p. 8.), the WCJ's Award provides for "further and ongoing medical treatment at the Centre for Neuro Skills." Such Award is supported by the Findings of Fact, numbered paragraph 4, which states, "Applicant requires further and continuing medical treatment at the Centre for Neuro Skills," which is in turn justified by the reasoning of the significant panel decision in Patterson v. The Oaks Farm (2014) 79 Cal.Comp.Cases 910 (Significant Panel Decision). Further, in addition to the reasons set forth in the WCJ's Report, we observe that petitioner's reliance on the case of Allied Signal Aero. v. Workers' Comp. Appeals Bd. (Wiggs) (2019) 35 Cal.App.5th 1077 [84 Cal.Comp.Cases 367] in support of the assertion that the Appeals Board has no jurisdiction to review the medical necessity and reasonableness of home health care is misplaced. Wiggs does not negate the reasoning of the significant panel decision in Patterson v.

Defendant's utilization review denial was based on typical treatment duration and perceived progress but lacked detailed medical-legal explanation and was considered conclusory.

Favours Applicant prevailed

This undermined the credibility of the denial and was insufficient to meet defendant's burden to discontinue treatment.

From the decision · page 8It stated the following: "The judge concludes Patterson does indeed apply here and Defendant has the burden of proof to provide substantial medical evidence. Defendant was ready for this possibility and argues they do have substantial medical evidence of a change in condition or circumstances. However, this evidence is the utilization review denial dated 10/25/24 by Dr. Avrom Gart. Dr. Gart is not the treating physician and has never personally examined the Applicant as far as the judge knows. This somewhat undercuts his credibility when he makes determinations based on perceived progress or improvement from treatment.

Applicant's treating physician, Dr. Prasad, supported ongoing treatment citing ongoing cognitive, visual, and functional deficits.

Favours Applicant prevailed

This medical opinion was credited over the utilization review denial and supported continuation of treatment.

From the decision · page 10Yet his reporting all supports the idea of continued treatment at CNS. His original treatment plan was described as follows: Victor Ernesto the applicant should participate in a post-acute neurorehabilitation day treatment program at CNS for the continued medical management of cognitive, linguistic, physical, and emotional deficits related to his postconcussional syndrome, mild traumatic brain injury, and subsequent decline in functional abilities. This includes deficits in the areas of mobility, balance, ocular motility, vestibular function, instrumental AOL performance, initiation, attention, concentration, memory, problem-solving, expressive/receptive language, and emotional- psychological stability. Neuroplasticity occurs optimally in the setting of intensive, aggressive, repetitive treatment. CNS utilizes neuro-developmental sequence approaches in all areas to maximize improvement. These services cannot be easily duplicated in general rehabilitation settings. (Exhibit 4) Dr. Prasad's treatment goals were listed on page 4 of Exhibit 5. It was to improve memory, improve symptoms of depression and anxiety and improve visual perceptual skills and ocular motor skills.

Applicant has ongoing severe visual and cognitive deficits affecting safety and independence.

Favours Applicant prevailed

These deficits justified the need for continued intensive treatment at the Centre for Neuro Skills.

From the decision · page 11MTUS Guidelines indicate that if a patient is making functional gains in an intense day treatment program, it is less likely that these gains would continue in an outpatient setting. Per the denial letter, dated October 25, 2024, despite the report of ongoing deficits of headaches, dizziness, blurry vision, extreme light sensitivity, balance disruption, poor memory, and decreased processing that continue to affect Victor's ability to manage his household tasks and medical concerns, the medical reviewer, Dr. Avrom Gart, MD, recommended a transition to an independent regimen. However, the applicant has not yet been cleared to participate in an adaptive driving evaluation, and has not proven to be safe with independent tasks in the home or community due to his ongoing severe visual deficits and cognitive/memory deficits, as indicated above. the applicant has made significant progress, as stated in this review letter, and does meet the criteria by MTUS Guidelines for ongoing treatment. This ongoing day treatment program is crucial for safety and to assure that the physical, mental, cognitive and vestibular deficits continue to be addressed to promote his safety and independence at home, in the community, and in his vocational role. This recommendation is medically necessary and is supported by ODG Guidelines."

Supports ongoing treatment at Centre for Neuro Skills for cognitive, linguistic, physical, and emotional deficits related to postconcussional syndrome and mild traumatic brain injury, emphasizing neuroplasticity and the need for intensive, repetitive treatment.

The treating physician's reports support the continuation of treatment and are credited over the utilization review denial.

From the decision · page 10Yet his reporting all supports the idea of continued treatment at CNS. His original treatment plan was described as follows: Victor Ernesto the applicant should participate in a post-acute neurorehabilitation day treatment program at CNS for the continued medical management of cognitive, linguistic, physical, and emotional deficits related to his postconcussional syndrome, mild traumatic brain injury, and subsequent decline in functional abilities. This includes deficits in the areas of mobility, balance, ocular motility, vestibular function, instrumental AOL performance, initiation, attention, concentration, memory, problem-solving, expressive/receptive language, and emotional- psychological stability. Neuroplasticity occurs optimally in the setting of intensive, aggressive, repetitive treatment. CNS utilizes neuro-developmental sequence approaches in all areas to maximize improvement. These services cannot be easily duplicated in general rehabilitation settings. (Exhibit 4) Dr. Prasad's treatment goals were listed on page 4 of Exhibit 5. It was to improve memory, improve symptoms of depression and anxiety and improve visual perceptual skills and ocular motor skills.

Denied further treatment at Centre for Neuro Skills based on typical treatment duration and patient's progress, but lacked detailed medical-legal explanation and was considered conclusory and not substantial medical evidence.

The utilization review denial was found insufficiently detailed and conclusory, thus not substantial medical evidence to discontinue treatment.

From the decision · page 8It stated the following: "The judge concludes Patterson does indeed apply here and Defendant has the burden of proof to provide substantial medical evidence. Defendant was ready for this possibility and argues they do have substantial medical evidence of a change in condition or circumstances. However, this evidence is the utilization review denial dated 10/25/24 by Dr. Avrom Gart. Dr. Gart is not the treating physician and has never personally examined the Applicant as far as the judge knows. This somewhat undercuts his credibility when he makes determinations based on perceived progress or improvement from treatment.

Patterson v. The Oaks Farm (2014) 79 Cal.Comp.Cases 910

An employer may not unilaterally cease authorized treatment without substantial medical evidence of a change in the employee's condition or circumstances.

The WCJ and WCAB applied Patterson to hold that defendant must prove a change in condition to discontinue treatment.

From the decision · page 6The judge determined treatment needed to continue after Defendant failed to meet its burden of proof under the Patterson line of cases to show a change in circumstances or condition. In Patterson v The Oaks Farm, 79 Cal.Comp.Cases 910, the Appeals Board held that an employer may not unilaterally cease to provide treatment authorized as reasonably required to cure or relieve the effects of industrial injury upon an employee without substantial medical evidence of a change in the employee's circumstances or condition. The reasoning is that Defendant acknowledged the reasonableness and necessity of the treatment when it first authorized it, and applicant does not have the burden of proving ongoing reasonableness and necessity. Rather, it is defendant's burden to show that the continued provision of the treatment is no longer reasonably required because of a change in applicant's condition or circumstances. Some decisions refer to a "material" change in condition. Defendant cannot shift its burden onto applicant by requiring a new Request for Authorization and starting the process over again.

Labor Code section 5909

The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

The panel found the petition for reconsideration was timely filed and acted upon within the statutory period.

From the decision · page 2I. Former Labor Code section 59091 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The utilization review denial by Dr. Avrom Gart lacked detailed medical-legal explanation and was considered conclusory, undermining its credibility.

From the decision · page 8It stated the following: "The judge concludes Patterson does indeed apply here and Defendant has the burden of proof to provide substantial medical evidence. Defendant was ready for this possibility and argues they do have substantial medical evidence of a change in condition or circumstances. However, this evidence is the utilization review denial dated 10/25/24 by Dr. Avrom Gart. Dr. Gart is not the treating physician and has never personally examined the Applicant as far as the judge knows. This somewhat undercuts his credibility when he makes determinations based on perceived progress or improvement from treatment.

Applicant's ongoing severe visual deficits and cognitive/memory deficits affecting safety and independence supported the need for continued treatment at Centre for Neuro Skills.

From the decision · page 11MTUS Guidelines indicate that if a patient is making functional gains in an intense day treatment program, it is less likely that these gains would continue in an outpatient setting. Per the denial letter, dated October 25, 2024, despite the report of ongoing deficits of headaches, dizziness, blurry vision, extreme light sensitivity, balance disruption, poor memory, and decreased processing that continue to affect Victor's ability to manage his household tasks and medical concerns, the medical reviewer, Dr. Avrom Gart, MD, recommended a transition to an independent regimen. However, the applicant has not yet been cleared to participate in an adaptive driving evaluation, and has not proven to be safe with independent tasks in the home or community due to his ongoing severe visual deficits and cognitive/memory deficits, as indicated above. the applicant has made significant progress, as stated in this review letter, and does meet the criteria by MTUS Guidelines for ongoing treatment. This ongoing day treatment program is crucial for safety and to assure that the physical, mental, cognitive and vestibular deficits continue to be addressed to promote his safety and independence at home, in the community, and in his vocational role. This recommendation is medically necessary and is supported by ODG Guidelines."