ADJ8996318 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; July 3, 2023 Findings and Award amended to find defendant did not timely defer utilization review upon receiving two medical reports with requests for authorization.

Defendant sought reconsideration of the July 3, 2023 Findings and Award regarding medical treatment authorization and utilization review timeliness.

Read the official 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.

Medical treatment / UR / IMRApplicant prevailedcervical spine · bilateral wrists · right lower extremity · right knee

The WCAB found that defendant did not timely serve the Notices of Deferred RFA on the applicant, rendering them defective and untimely, thus allowing the WCAB to decide on the medical necessity based on substantial evidence. The WCJ's finding that the requested treatment is reasonable, necessary, and a compensable consequence of the industrial injury was upheld.

From the decision · page 4Section 4610(l) permits a defendant to defer utilization review when it disputes liability for injury or treatment. (§ 4610(l); Cal. Code Regs., tit. 8, Rule 9792.9.1(b).) Rule 9792.9(b)(1) requires that, among other things, that the deferral be served on the injured worker, in addition to the injured worker's attorney if the injured worker is represented by counsel. (Cal. Code Regs., tit. 8, Rule 9792.9.1(b)(1).) Here, there is no indication that either the June 21, 2022 or the October 31, 2022 Notices of Deferred RFA were served on applicant. (Defendant Exhibits F and G, Notices of Deferred RFA dated June 21, 2022 and October 31, 2022.) As such, the Notices of Deferred RFA are defective and deemed untimely. (Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298, 1306 [2014 Cal. Wrk. Comp. LEXIS 131] (Appeals Board En Banc); Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519, 1522 [2014 Cal, Wrk. Comp. LEXIS 156].) Under these circumstances, the WCAB may decide on the issue of medical necessity of the requested treatment based on substantial evidence. (Dubon II at p. 1312; Bodam at p. 1522.) We agree with the WCJ that the treatment requested is reasonable, necessary, and a compensable consequence of the industrial injury.

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

Requested treatment for right lower extremity and knee due to gait disorder caused by spinal cord injury after cervical spine surgery; treatment deemed reasonable, necessary, and compensable consequence of industrial injury.

The WCJ and WCAB relied on Dr. Wieseltier's opinion as substantial evidence supporting the compensability and necessity of the requested treatment.

From the decision · page 2The exhibits offered by the parties indicate that the treating physician, Dr. Edward Weiseltier issued a Request for Authorization (RFA) on June 16, 2022. (Applicant's Exhibit 1) Under the heading of diagnosis, the doctor has indicated "knee pain, bilateral", and "gait disorder." Defendant, upon receipt of this RFA issued a timely "Notice of Deferred RFA" dated June 21, 2022, addressed to Dr. Weiseltier and copied to applicant's attorney. (Applicant's Exhibit 8).

QMERejected

QME reports disputed compensability and medical necessity of requested treatment; defendant relied on these reports to argue treatment was non-industrial and not medically necessary.

Defendant cited Dr. Clarke's QME reports to contest the compensability and necessity of treatment, but the WCAB found the defendant's deferral notices defective and upheld the treating physician's opinion instead.

From the decision · page 1Defendant contends that based on the parties' stipulations and the Qualified Medical Evaluator's (QME) reports of Aidan Clarke, M.D., the requested treatment is non-industrial and not medically necessary on an industrial basis. Defendant further contends that the Primary Treating Physician (PTP) reports of Edward Wieseltier, D.O., who requested the treatment, is not substantial evidence. Finally, defendant contends that the issue of whether the requested treatment is medically necessary should be submitted to utilization review pursuant to Labor Code,1 section 4610(m) or, in the alternative, that defendant be allowed to obtain an update QME report under section 4062.

The rules the panel named

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

Labor Code section 4610(l)

Section 4610(l) permits a defendant to defer utilization review when disputing liability for injury or treatment.

Defendant's deferral notices were defective and untimely as they were not served on the applicant, thus the WCAB could decide medical necessity based on substantial evidence.

From the decision · page 4Section 4610(l) permits a defendant to defer utilization review when it disputes liability for injury or treatment. (§ 4610(l); Cal. Code Regs., tit. 8, Rule 9792.9.1(b).) Rule 9792.9(b)(1) requires that, among other things, that the deferral be served on the injured worker, in addition to the injured worker's attorney if the injured worker is represented by counsel. (Cal. Code Regs., tit. 8, Rule 9792.9.1(b)(1).) Here, there is no indication that either the June 21, 2022 or the October 31, 2022 Notices of Deferred RFA were served on applicant. (Defendant Exhibits F and G, Notices of Deferred RFA dated June 21, 2022 and October 31, 2022.) As such, the Notices of Deferred RFA are defective and deemed untimely. (Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298, 1306 [2014 Cal. Wrk. Comp. LEXIS 131] (Appeals Board En Banc); Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519, 1522 [2014 Cal, Wrk. Comp. LEXIS 156].) Under these circumstances, the WCAB may decide on the issue of medical necessity of the requested treatment based on substantial evidence. (Dubon II at p. 1312; Bodam at p. 1522.) We agree with the WCJ that the treatment requested is reasonable, necessary, and a compensable consequence of the industrial injury.

California Code of Regulations, title 8, Rule 9792.9.1(b)

Rule 9792.9.1(b) requires deferral notices to be served on the injured worker and their attorney if represented.

Deferral notices were not served on applicant, making them defective and untimely.

From the decision · page 4Section 4610(l) permits a defendant to defer utilization review when it disputes liability for injury or treatment. (§ 4610(l); Cal. Code Regs., tit. 8, Rule 9792.9.1(b).) Rule 9792.9(b)(1) requires that, among other things, that the deferral be served on the injured worker, in addition to the injured worker's attorney if the injured worker is represented by counsel. (Cal. Code Regs., tit. 8, Rule 9792.9.1(b)(1).) Here, there is no indication that either the June 21, 2022 or the October 31, 2022 Notices of Deferred RFA were served on applicant. (Defendant Exhibits F and G, Notices of Deferred RFA dated June 21, 2022 and October 31, 2022.) As such, the Notices of Deferred RFA are defective and deemed untimely. (Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298, 1306 [2014 Cal. Wrk. Comp. LEXIS 131] (Appeals Board En Banc); Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519, 1522 [2014 Cal, Wrk. Comp. LEXIS 156].) Under these circumstances, the WCAB may decide on the issue of medical necessity of the requested treatment based on substantial evidence. (Dubon II at p. 1312; Bodam at p. 1522.) We agree with the WCJ that the treatment requested is reasonable, necessary, and a compensable consequence of the industrial injury.

Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298

The WCAB may decide on medical necessity based on substantial evidence when deferral notices are defective or untimely.

Because deferral notices were defective and untimely, the WCAB decided medical necessity based on substantial evidence, upholding the treating physician's opinion.

From the decision · page 4Section 4610(l) permits a defendant to defer utilization review when it disputes liability for injury or treatment. (§ 4610(l); Cal. Code Regs., tit. 8, Rule 9792.9.1(b).) Rule 9792.9(b)(1) requires that, among other things, that the deferral be served on the injured worker, in addition to the injured worker's attorney if the injured worker is represented by counsel. (Cal. Code Regs., tit. 8, Rule 9792.9.1(b)(1).) Here, there is no indication that either the June 21, 2022 or the October 31, 2022 Notices of Deferred RFA were served on applicant. (Defendant Exhibits F and G, Notices of Deferred RFA dated June 21, 2022 and October 31, 2022.) As such, the Notices of Deferred RFA are defective and deemed untimely. (Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298, 1306 [2014 Cal. Wrk. Comp. LEXIS 131] (Appeals Board En Banc); Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519, 1522 [2014 Cal, Wrk. Comp. LEXIS 156].) Under these circumstances, the WCAB may decide on the issue of medical necessity of the requested treatment based on substantial evidence. (Dubon II at p. 1312; Bodam at p. 1522.) We agree with the WCJ that the treatment requested is reasonable, necessary, and a compensable consequence of the industrial injury.

Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519

The WCAB may decide on medical necessity based on substantial evidence when deferral notices are defective or untimely.

Because deferral notices were defective and untimely, the WCAB decided medical necessity based on substantial evidence, upholding the treating physician's opinion.

From the decision · page 4Section 4610(l) permits a defendant to defer utilization review when it disputes liability for injury or treatment. (§ 4610(l); Cal. Code Regs., tit. 8, Rule 9792.9.1(b).) Rule 9792.9(b)(1) requires that, among other things, that the deferral be served on the injured worker, in addition to the injured worker's attorney if the injured worker is represented by counsel. (Cal. Code Regs., tit. 8, Rule 9792.9.1(b)(1).) Here, there is no indication that either the June 21, 2022 or the October 31, 2022 Notices of Deferred RFA were served on applicant. (Defendant Exhibits F and G, Notices of Deferred RFA dated June 21, 2022 and October 31, 2022.) As such, the Notices of Deferred RFA are defective and deemed untimely. (Dubon v. World Restoration (Dubon II) (2014) 79 Cal.Comp.Cases 1298, 1306 [2014 Cal. Wrk. Comp. LEXIS 131] (Appeals Board En Banc); Bodam v. San Bernardino County/Dept. of Soc. Servs. (2014) 79 Cal.Comp.Cases 1519, 1522 [2014 Cal, Wrk. Comp. LEXIS 156].) Under these circumstances, the WCAB may decide on the issue of medical necessity of the requested treatment based on substantial evidence. (Dubon II at p. 1312; Bodam at p. 1522.) We agree with the WCJ that the treatment requested is reasonable, necessary, and a compensable consequence of the industrial injury.

ADJ8996318 · September 22, 2023

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page