BAKERSFIELD Subrogation UR/IMR Case Law Review · 2017. 4. 28. · Client Seminar 2016 ... Injury Causes Relapse Of Alcoholism ..... 17 Good Faith Personnel Action Defense Does Not

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LOS ANGELES

OAKLAND

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SANTA ROSA

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Client Seminar 2016

∝ Subrogation ∝ UR/IMR ∝ Case Law Review

Presented By

Mullen & Filippi, LLP July/August 2016

Concord . San Francisco . Fresno . Sacramento . costa Mesa

Client Seminar July/August 2016 Mullen & Filippi, LLP

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TABLEOFCONTENTSTABLE OF CONTENTS ..................................................................................................................................... 1

SUBROGATION .............................................................................................................................................. 3

Why Subrogate? ........................................................................................................................................ 3

Definition of Subrogation .......................................................................................................................... 3

Legal Concepts .......................................................................................................................................... 3

Negligence ................................................................................................................................................. 4

Investigation .............................................................................................................................................. 4

Investigation Documentation ................................................................................................................... 4

Methods to Pursue Recovery .................................................................................................................... 5

Statute of Limitations ................................................................................................................................ 5

Resolution Options .................................................................................................................................... 5

Steps to Take in Managing the Case ......................................................................................................... 5

Litigation Management ............................................................................................................................. 6

Pitfalls to Avoid ......................................................................................................................................... 6

MEDICAL TREATMENT = UTILIZATION REVIEW ............................................................................................ 8

How is medical treatment authorized? .................................................................................................... 8

Improper RFA ............................................................................................................................................ 9

UR Decision to Delay ................................................................................................................................. 9

UR Deferral on Disputes .......................................................................................................................... 10

UR Checklist: ........................................................................................................................................... 11

INDEPENDENT MEDICAL REVIEW (IMR) ..................................................................................................... 12

IMR Application ....................................................................................................................................... 12

IMR Procedure ........................................................................................................................................ 12

IMR Timeliness ........................................................................................................................................ 13

IMR Determinations ................................................................................................................................ 13

Appeal of IMR Determination ................................................................................................................. 14

Appeal of IMR Determination ................................................................................................................. 15


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CASE LAW UPDATE ...................................................................................................................................... 16

Untimely IMR Determinations Are Valid And Are Not Subject To Appeal Due To The

Untimeliness Of The Determination .............................................................................................. 16

Death Due To Alcohol Consumption Not Barred By Intoxication Defense Where Industrial

Injury Causes Relapse Of Alcoholism ............................................................................................. 17

Good Faith Personnel Action Defense Does Not Apply To Stress‐Related Hypertension ...................... 18

“Sudden And Extraordinary” Exception In Labor Code §3208.3(D) Refers To The

Mechanism Of Injury, Not The Results Of The Injury .................................................................... 19

Either Party May Request QME Panel During 90‐Day Delay Period ....................................................... 20

WCAB Rejects Workers’ Compensation Judge’s Order Requiring Claim Adjuster To

Personally Appear At All Future Hearings ...................................................................................... 21

Duty To Notify Employee Of Workers’ Compensation Rights Not Triggered Until Employer

Has Notice Of Industrial Injury ....................................................................................................... 22

When Defendant Proves Applicant Was Given Written Notice Of Workers’ Compensation

Rights, Burden Shifts To Applicant To Prove Statute Of Limitations Is Tolled .............................. 23

Board Panel Rejects Permanent Disability Rating Based On Estimated Loss Of Use Of Body

Part ................................................................................................................................................. 24

AME’s General “Criticism” Of The AMA Guides Not Sufficient To Support

Almaraz/Guzman Rating ................................................................................................................ 25

Vocational Expert’s Report Fails To Support Diminished Future Earning Capacity ................................ 26

Trial Judge Improperly Applied Orthopedic Apportionment To All Categories Of

Permanent Disability ...................................................................................................................... 27

Labor Code §4664 Apportionment Requires Overlap Between Current Injury And Prior

Award ............................................................................................................................................. 28

Applicant Injured On Way To Medical Office Visit For Two Industrial Injuries Entitled To

Unapportioned Award Of Permanent Total Disability ................................................................... 29

Utilization Review Denial Must Be Communicated to Requesting Doctor Via Telephone,

Fax Or Email And In Writing ........................................................................................................... 30

Untimely Utilization Review Decision Is Invalid And WCAB May Determine If Requested

Treatment Is Reasonable And Supported By Medical Evidence .................................................... 31

WCAB Grants Appeal Of IMR Decision Based On Mistake Of Fact ......................................................... 32

Applicant’s Unsuccessful Attempts To Obtain Treatment From 5 Physicians Out Of More

Than 65 Names On Defendants’ MPN Did Not Allow Applicant To Treat Outside

MPN ............................................................................................................................................... 33


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SUBROGATION

WhySubrogate?• The purpose of subrogation is to place responsibility for the injury where it belongs. The

employer is entitled, by law, to attempt to recover losses that are the fault of another

entity/individual. The claims administrator holds a fiduciary duty to pursue recovery.

• A fiduciary duty is the obligation to operate in the best interest of the employer or the carrier.

• Employer: Subrogation recoveries are reported to the WCIRB as a credit for an insured client’s

experience modification factor. This could potentially assist with reducing the amount the

employer will pay in premium.

Experience Modifications: Factor determined by calculating the loss history, by frequency and

severity, and payroll which is used by states and underwriters to establish the insurance

premium for an employer. A subrogation recovery could reduce the severity factor for an

employer and generate a lower experience mod which could result in a lower premium for the

employer. As 3‐years of claim history are utilized, a recovery can have a positive impact on an

employer for 3‐years.

• Carriers: Recoveries improve a carrier’s profit margin as they reduce a carrier’s paid loss.

• Self‐Insured Entity: As the claims are paid by funds directly provided by the self‐insured entity,

they receive a dollar for dollar impact when a recovery is made. Recoveries will also reduce the

amount of the bond they are required to post with the State.

DefinitionofSubrogation• Subrogation is the right to pursue reimbursement from any third party whose negligent act or

omission caused us to pay a claim or increased the value of the payments made on a claim.

Example: Employee is shot in the eye with a nail gun. Potential subrogation exists against the

person utilizing the nail gun, owner of the nail gun, manufacture of the nail gun or the company

that sold the nail gun.

LegalConcepts• The key to a successful subrogation investigation is understanding what needs to be proven.

• Subrogation arises from either an overt act or omission on the part of another party.

• Subrogation potential arises from tortious conduct or omission, auto liability, premises liability,

and products liability.


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NegligenceElements of Negligence

1. Duty Owed

2. Duty Breached

3. Proximate Cause

4. Loss or Damage

Each of the 4 elements above must be proven to have a successful subrogation claim. You can

have a duty owed and breached with damages, however, if you fail to show that the duty

breached was the proximate cause of the damages you do not have a valid negligence claim.

Investigation• A workers compensation case is investigated to determine if injury occurred in the course and

scope of employment. The system is a no fault benefit system. Negligence is not an issue in the

investigation process.

• A subrogation case investigation is completed to determine negligence and liability. The Civil

Arena is based on damages.

• For the purposes of Subrogation we need to prove that the benefits paid in the workers

compensation system were actually owed. Defense can assert that disability or medical care

benefits paid were not warranted and diminish the value of our recovery.

Look for injuries related to the actions or inactions of others.

Examples as follows:

• Auto Accident

• Premises ‐ slip and falls

• Products ‐ Did a piece of equipment cause or contribute to the injury?

• Is there a potential design defect?

InvestigationDocumentation• Preservation of evidence is essential. Again if we cannot prove it we cannot prevail on it. With

our nail gun example we would want to obtain it and save it. We also need to document

possession of the gun so we can prove no alterations occurred to it from the time of the

accident through our taking possession.

• Spoliation letter(s)


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• Investigator to photograph scene, measurements, instrumentation, and take recorded

statements from witnesses (for MVA’s good to hire a PI with former law enforcement

experience)

• Record of chain of custody for secured / preserved evidence

MethodstoPursueRecovery• Lien

• Complaint in Intervention

• Complaint

StatuteofLimitations• Private Sector: Suit needs to be filed and served within 2‐years from the date of the accident

• Public Agencies: 6‐months from the date of injury for State, County and City Governments.

• Federal: 2‐years from date of injury for Federal Government

To protect the statute, a formal complaint needs to be filed. Simply sending a letter is not sufficient.

ResolutionOptions• Settlement with Future Credit

• Sell our lien to the defendant

• 3rd Party Compromise and Release

• Verdict

StepstoTakeinManagingtheCase• Identify the Exposure;

• Investigate the Cause and Effect of the injury;

• Secure and preserve any relevant evidence;

• Identify the responsible party;

• Place the responsible party, applicant, employer, and carrier on notice of the subrogation

interest;


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• Continue with investigation and gather evidence to support claim;

• Provide all parties with 90‐day updates on amount of our lien and request 100%

reimbursement;

• Identify appropriate resolution strategy;

• Complete cost benefit analysis;

• If necessary, preserve the Statute of Limitations.

• Attempt to avoid resolving the subrogation case prior to the value of the workers compensation

case being fully established. This is not always possible. If a coverage limit issue exists early

resolution may be warranted;

• Employ outside investigator when exposure and recovery potential warrant – Use Attorney

Work Product Privilege to preserve and protect your investigative efforts;

• Conference your case with manager and counsel on a regular basis;

• Establish recovery strategy early in the case and modify as facts are developed;

• When warranted retain services of subrogation counsel;

• When resolved complete appropriate settlement paper work and file on the WCAB. Remember

if credit rights are being claimed petition for credit must be filed and an order approving

pursued.

LitigationManagement• When needed, retain qualified subrogation counsel.

• Include all evidence, payment history, medical reports, and documentation with referral.

• Evaluate litigation strategy at all stages. Require defense to consistently provide a cost benefit

analysis and resolution recommendations.

• Keep counsel informed of benefit status and developments.

• Collaborate with counsel for best results.

PitfallstoAvoid• Never assume that someone else is protecting your interest. Your interest in a subrogation

matter needs to be monitored at all times.


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• Do not assume that the parties in the underlying WC matter are concurrently addressing civil

issues / interests.

• Never assume that statutes have been protected. Get copies of appropriate correspondence.

• Do not lose sight of your objective which is a + net cash recovery for client and a closed claim.

Monitor costs at all stages.

• Do not waive or reduce recovery rights without agreement from all parties. Often, you are not

dealing with your money.

• Always require subrogation counsel to provide an assessment on impact of litigation activities

on the net recovery.


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MEDICALTREATMENT=UTILIZATIONREVIEW

Howismedicaltreatmentauthorized?1. Treating physician completes a DWC Form RFA and submits it to claims adjuster. Title 8, CCR

Section 9792.9.1(a)

a. However, per recent case Lopez c. City and County of San Francisco, 2016 Cal. Wrk.

Comp. P.D. Lexis.. WCAB Panel found request for authorization submitted by secondary

treating physician triggered UR process. All requests for medical treatment

authorizations must be decided in accordance with Labor Code Section 4610 (UR) and

Labor Code Section 4610.5 (IMR).

b. RFAs are NOT necessary where there is a PR‐2 where it is clearly listed “Request for

Authorization” at top of the first page, all requested treatment must be on the first page

and the request is accompanied by supporting documentation. Title 8, CCR Section

9792.9.19(c)(2)(B) Please review Pr‐2’s even if no RFA is included, UR review may be

required.

2. Adjustor can approve the request.

3. Adjustor can submit request to UR for determination.

a. General rule is that UR must make a decision w/in 5 business days to approve, deny or

issue a delay letter. UR may issue a delay, but decision must be made within 14

calendar days of RFA receipt

b. Time of receipt:

i. Electronic date stamp on fax or email receipt: if RFA received or transmitted

after 5:30pm, date of receipt is next business day.

ii. Mail: receipt is 5 business days after RFA is sent.

iii. Certified mail w/return receipt: date on return receipt.

c. Expedited review (Labor Code Section 4610(g)(2) “employee faces an imminent and

serious threat to his/her health…provision of medical treatment services to employee

shall be made in a timely fashion that is appropriate for the nature of the employee’s

condition but not to exceed 72 hrs. after receipt of the information reasonably

necessary to make the determination.

d. UR must notify treating doctor of the decision by phone, fax or email within 24 hours of

decision.


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e. UR must follow up with written notice of the decision to the treating doctor, injured

worker, and applicant attorney within 2 business days of decision for prospective

review.

ImproperRFA1. If the DWC Form RFA is not completed properly, or if request for authorization is not on an RFA

form at all, a non‐ physician reviewer or reviewer may either treat the form as a completed RFA

and comply with the timeframes for decision or return it to the requesting physician marked

“not complete” no later than 5 business days from receipt. The timeframe for a decision on

that returned request for authorization shall begin anew upon receipt of the completed DWC

Form RFA. Title 8, CCR Section 9792.9.1(c )(2)

URDecisiontoDelay1. UR can be delayed up to 14 calendar days, BUT:

a. Delay must be requested within 5 business days of receipt of request.

b. UR doctor must explain what information is needed specifically and why it is needed to

make a decision.

i. “provide all documents that supports the request for authorization” is vague =

invalid.

ii. Need to state specifically what information you need and why it is necessary.

iii. UR delays for more information that is already within the adjustor’s possession

is invalid delay

2. If information requested by UR is not received within 14 calendar days, UR shall conditionally

deny the RFA and reconsider it upon receipt of the additional information. Title 8, CCR Section

9792.1(f)(3)(A)

a. Whenever a reviewer issues a decision to deny a request for authorization based on the

lack of medical information necessary to make a determination, the claims

administrator’s file must document the attempt by the claims administrator or reviewer

to obtain the necessary medical information from the physician either by fax, mail or

email.

3. If additional testing or specialized consultation is not completed within 30 days of the RFA date,

UR shall conditionally deny the RFA and reconsider it upon receipt of the additional information

4. UR is only delayed until the adjustor or reviewer received the information requested.

a. Once the information is received, the 5 day clock stars anew.


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5. UR delays for information that is already within the adjustor’s possession = invalid delay

URDeferralonDisputes1. UR review of a medical treatment request made on the DWC Form RFA may be deferred if the

claims administrator disputes liability for either the occupational injury for which the treatment

is recommended or the recommended treatment itself on the grounds other than medical

necessity = Commonly used for disputed body parts.

HOWEVER:

a. If claims administrator disputes liability under this subdivision, it may, no later than 5

business days from the receipt of the RFA, issue a written decision deferring utilization

review of the requested treatment. Tittle 8, CCR Section 9792.9.1(b)(1)

b. The written decision must be sent to the requesting physician, the injured worker, and

applicant attorney. Tittle 8, CCR Section 9792.9.1(b)(1). It could be argued that failure

to dispute liability for an RFA is waiver of UR for that RFA.

c. UR Deferral letter must have the following per Title 8, CCR 9792.9.1(b)(1)(A‐E):

i. The date on which the RFA was first received

ii. A description of the specific course of proposed medical treatment for which

authorization was requested

iii. A clear, concise, and appropriate explanation of the reason for the claims

administrator’s dispute of liability for either the injury, claimed body part, or

parts, or the recommended treatment

iv. A plain language statement advising the injured employee that any dispute

under this subdivision shall be resolved either by agreement of the parties or

through the dispute resolution process of the Workers’ compensation Appeals

Board

v. The fo0llowing mandatory language “you have a right to disagree with decisions

affecting your claim…..”

d. If UR is deferred pursuant to this section, and it is finally determined that the claims

administrator is liable for treatment of the condition for which the treatment is

recommended, either by decision or by agreement, the time to conduct retrospective

UR shall begin on the date the determination of the claims administrator’s liability

becomes final. The time for the claims administrator to conduct prospective review

shall commence from the date of the receipt of the RFA after the final determination of

liability.


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2. Very important if a claim is denied due to AOE/COE or any other reason, once the claim is

deemed compensable, the timeclock begins for UR review on the date that you accept liability

or the date the decision becomes final. Title 8, CCR 9792.9.1(b)(2). If you blow this timeline,

then you are looking at litigating medical necessity at the WCAB for all these deferred RFA’s.

URChecklist:1. What day did adjustor receive RFA?

• on the following calendar day count out 5 business days. Some response from UR is

due. If none, UR is not timely

2. Was UR delayed properly?

• request for delay must be received within 5 business days of the date of RFA receipt.

3. If UR was untimely or improperly delayed, applicant still has to prove medical necessity.

• review MTUS and prepare documents from the medical file that discount the medical

necessity of the requested treatment. Make sure you come prepared with these

documents at the Expedited Hearing.

• many applicant attorneys forget their burden of proving medical necessity


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INDEPENDENTMEDICALREVIEW(IMR)

When there is a UR determination denying, modifying or delaying treatment, the employee may

choose to obtain review of that UR determination through IMR. Labor Code Section 4610.5 (d)

IMRApplication1. With a Utilization Review (UR) determination denying, modifying or delaying medical

treatment, an IMR application must be included. LC Section 4610.5 (d)

2. The employee must request IMR no later than 30 days after the service of the UR

determination. Labor Code Section 4610.5(h)(1)

3. The submission must include:

a. Representative Designation;

b. Signed and completed IMR Application;

c. Copy of the Application sent to claims administrator;

d. Copy of the UR determination letter

An unverified IMR Application is subject to dismissal, although the party would be given reasonable

time to cure the defect. Torres v. SCIF (2014) 42 CWCR 193, 79 CCC 1181 (significant Panel Decision)

IMRProcedure1. The Administrative Director (AD) will assign the request to the IMR Organization (IMRO), i.e.,

Maximus, and within 10 days of assignment, the employer must submit to Maximus all relevant

medical documents and records. If there is threat of imminent and serious harm to the

employee, then the relevant medical documents and records must be submitted within 24

hours. LC Section 4610.5(l); Section 4610.5(n); Section 4610.5(o)

2. The claims administrator shall send a copy of all reports of the physician relevant to the

employer’s current medical condition produced within six (6) months prior to the date of the

RFA, including those that are specifically identified in the request for authorization or in the UR

determination. Title 8 CCR Section 9792.10.5 (a)(1)(A)

Employee entitled to another IMR review because employer did not provide Maximus with the

AME report that recommended the denied procedure. Garibay‐Jimenez v. Santa Barbara

Medical Foundation Clinic (2015) 43 CWCR 92


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However, UR denial is not defective if the missing medical reports would not have changed the

result. Otten v. CIGA (2014) 42 CWCR 196 (WCAB)

3. The claims administrator shall…forward to the employee and the employee’s representative a

notification that lists all the documents submitted to Maximus, and shall provide to the

employee and the employee’s representative with documents that were not previously

provided. Title 8, CCR 9792.10.5

Failure to serve Applicant’s Attorney with IMR materials rendered the UR denial invalid. Bigham

v. Oak Ins. Co. (2014) 42 CWCR 122 (WCAB)

IMRTimeliness1. The IMRO, i.e., Maximus, shall complete its review and make its determination in writing, within

30 days of the receipt of the request for review and supporting documentation. If there is an

imminent and serious threat to the health of the employee may exist, the analyses and

determinations of the reviewers shall be expedited and rendered within three days of the

receipt of the information. LC Section 4610.6(d)

An IMR decision that was not issued within 45 days of the IMR assignment was

invalid. Saunders v. Loma Linda University Medical Group (2015) 43 CWCR 145 (WCAB).

2. However, there is case law which holds that the IMR timelines are not mandatory but

directory. In short, even if IMR does not make its determination in writing within 30 days, the

IMR decision is not invalid.

Arredondo v. Tri‐Modal Distribution Services, Inc.(SCIF) (2015) 2015 Cal. Wrk. Comp. P.D. Lexis

209; Stevens v. WCAB (2015) 43 CWCR 252, 80CCC 1262 (CA 1st ‐ pub); CHP (SCIF) v. WCAB

(Margaris) (2016) ADJ9397913, 2nd D.C.A.

IMRDeterminations1. In 2015, 88.6% of UR determinations were upheld by IMR; 91% of UR determinations were

upheld in 2014.

2. If/when IMR does not uphold the UR determination to delay, modify or deny trying and finds

the treatment to be appropriate, the employer must authorize the serves within five (5)

working days of receipt of the determination. Labor Code Section 4610.6(j)

3. In the case of reimbursement for services already rendered, the employer shall reimburse the

provider or employee, whichever applies, within 20 days, subject to resolution of any remaining

issue of the amount. Labor Code Section 4610.6(j)


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4. Failure to pay for services already provided or to authorize services not yet rendered within the

time prescribed is a violation and, in addition to any other fines, penalties, and other remedies

available to the AD, the employer shall be subject to an administrative penalty in an amount

determined pursuant to regulations to be adopted by the AD, not to exceed five thousand

dollars ($5,000) for each day the decision is not implemented. Labor Code Section 4610.6(k)

AppealofIMRDetermination1. An IMR determination is final and binding unless appealed to the Board within 30 days of the

date of the mailing of the determination by the aggrieved employee or employer. LC Section

4610.6 (g); Section 4610.6(h)

2. There are five (5) grounds upon which the IMR determination can be appealed:

• The AD acted in excess of powers;

• The determination procured by fraud;

• The IMR reviewer was subject to a material conflict of interest;

• The determination was the result of bias based on race, national origin, ethnic group

identification, religion, age, sex, sexual orientation, color, or disability.

• The determination was the result of a plainly erroneous express or implied finding of fact.

In Gonzalez‐Ornelas v. County of Riverside, (2016) (Pomona WCAB‐ ADJ227596 and

AJD3720208), WCJ reversed finding of the AD/IMR that knee injections should be denied as

reviewer erroneously stated that no documentation that applicant was suffering from

osteoarthritis and did not benefit from injections.

In McAtee v. SCIF, (2015) (Sacramento WCAB‐ ADJ2068970, WCJ reversed finding of the AD/IMR

that Duragesic patches should be denied as reviewer erroneously stated that the applicant did

not benefit or have symptom relief from the patches.

Petition Appealing Independent Medical Review Determination Title 8 CCR Section 10958.1

If a party believes that one of the five grounds has been violated, then the aggrieved party may

file a Petition with the AD.

3. The petition shall be filed with the Workers' Compensation Appeals Board no later than 30 days

after service by mail of the IMR determination. An untimely petition may be summarily

dismissed.

4. The caption of the petition shall identify it as a Petition Appealing Administrative Director's

Independent Medical Review Determination. The caption shall include:

a. the injured employee's first and last names;

b. the name(s) of the defendant(s) involved in the IMR dispute;


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c. the case number assigned by the AD to the IMR determination; and the adjudication

case number, if any, assigned by the Workers' Compensation Appeals Board to any

related application for adjudication of claim(s) previously filed.

d. The petition shall include a copy of the IMR determination and proof of service to that

determination.

5. The petition shall comply with each of the following provisions:

e. The petition shall be limited to raising one or more of the five grounds specified in Labor

Code section 4610.6(h).

f. The petition shall set forth specifically and in full detail the factual and/or legal grounds

upon which the petitioner considers the IMR determination to be unjust or unlawful,

and every issue to be considered by the Workers' Compensation Appeals Board. The

petitioner shall be deemed to have finally waived all objections, irregularities, and

illegalities concerning the IMR determination other than those set forth in the petition.

6. The petition shall comply with the requirements of sections 10842(a) & (c), 10846, and 10852. It

shall also comply with the provisions of section 10845, including but not limited to the 25‐page

restriction.

7. Any failure to comply with the provisions of this subdivision shall constitute valid ground for

summarily dismissing or denying the petition.

AppealofIMRDetermination1. A Declaration of Readiness to Proceed (DOR) must be filed for the WCAB to take action.

2. If at hearing the issues related to the Appeal of the IMR determination cannot be resolved, then

the matter would then be set for Trial.

3. If the WCJ agrees the determination of the AD/(IMR) should be reversed, the dispute shall be

remanded to the AD to submit the dispute to IMR, a different reviewer at Maximus. Labor Code

Section 4610.6(i)


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CASELAWUPDATEUNTIMELY IMR DETERMINATIONS ARE VALID AND ARE NOT SUBJECT TO

APPEAL DUE TO THE UNTIMELINESS OF THE DETERMINATION

STATE COMPENSATION INSURANCE FUND vs. WCAB (MARGARIS)

(2016) 2016 Cal. App. LEXIS 491

Applicant sustained an admitted work related injury to her left foot and lumbar spine. On October 16,

2014 the applicant’s treating physician submitted a Request for Authorization for lumbar epidural

steroid injections to SCIF. On October 21, 2014 SCIF issued a Utilization Review denial of the treatment.

The applicant timely requested Independent Medical Review. On November 26, 2014 SCIF sent the

medical records to Maximus for review. Maximus issued an IMR Determination upholding SCIF’s denial

of the injections on January 8, 2015, 43 days later. Labor Code §4610.6(d) provides that Maximus “shall

complete its review and make its determination in writing, and in laypersons terms to the maximum

extent practicable, within 30 days of the receipt of the request for review and supporting

documentation….”

Applicant argued that the 30 day time limit was mandatory and, therefore, the IMR Determination was

invalid, and the judge would have to determine medical necessity. The workers’ compensation judge

agreed that the decision was late, but said that an untimely IMR Determination “does not confer

jurisdiction on the [workers’ compensation judge] to decide any medical treatment issues” and found

the determination was valid and binding on the parties.

Applicant filed a Petition for Reconsideration and the WCAB panel in a 2 to 1 decision overturned the

workers’ compensation judge’s decision. The panel found the IMR Determination to be invalid because

it was untimely. It went on to find that there was substantial evidence to support the medical necessity

of the injection.

Defendant filed a Petition for Writ of Review before the 2nd District Court of Appeal. The 2nd District

Court of Appeal overturned the WCAB decision and reinstated the workers’ compensation judge’s

decision finding that that the IMR Determination was untimely, but nonetheless valid. The court

discussed the meaning of the word “shall.” It made a distinction between legislative directions for an

administrative body to perform an action as being either directory, which means the governmental

agency can be compelled by a court to take the action, or mandatory, which means that failure to take

the action in the manner prescribed invalidates the action. The court held that the requirement that

Maximus issue the IMR Determination within 30 days is directory. The failure to act within the 30 days

does not invalidate the final determination by IMR. The court reasoned that there was nothing in the

statute saying that an untimely determination will be invalid. The court went on to say that making an

untimely determination invalid would frustrate the policy of the statute (1) to have doctors make the

IMR Determination, and not judges, and (2) for the procedure to be efficient.


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DEATH DUE TO ALCOHOL CONSUMPTION NOT BARRED BY INTOXICATION DEFENSE WHERE

INDUSTRIAL INJURY CAUSES RELAPSE OF ALCOHOLISM

CITY OF STOCKTON vs. WCAB

(2016) 81 Cal. Comp. Cases 212

Applicant, decedent’s spouse, filed a claim for death benefits.

Decedent sustained an accepted injury to his low back on September 12, 2006 while working as a

firefighter. He sought treatment from several doctors, including a psychologist from whom he had

previously sought treatment for “binge drinking” and other alcohol‐related issues.

On January 11, 2008, decedent was found dead in his bed. The cause of death was determined to

be acute ethanol intoxication. The Panel QME, a toxicologist, listed the cause of death as “acute

alcoholism.” The decedent’s blood alcohol level at the time of his death was .430.

The Workers’ Compensation Judge found that the death was compensable and awarded the widow

benefits.

The defendant filed a Petition for Reconsideration, arguing that the decedent had a long history of

alcohol abuse for which he had sought treatment and for which he had been subject to on‐the‐job

discipline. It also cited the “intoxication defense” in Labor Code §3600(a)(4) and argued that it had

proven (1) the employee imbibed intoxicants; (2) the employee was, in fact, intoxicated; and (3) the

intoxication caused the employee’s injury.

Applicant argued that the decedent’s underlying alcoholism had been aggravated by the industrial

back injury and that the death was the result of that aggravation. The WCAB Panel agreed, citing

reports from the psychiatrist that the applicant’s back injury was a “trigger” that caused his relapse

of alcoholism.

Defendant filed a Petition for Writ of Review which was denied by the Third District Court of Appeal.


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GOOD FAITH PERSONNEL ACTION DEFENSE DOES NOT APPLY TO STRESS‐RELATED HYPERTENSION

OLDEN vs. STATE OF CALIFORNIA

(2016) 2016 Cal. Wrk. Comp. P.D. Lexis 3

Applicant worked for the Department of Corrections as a research program specialist. She claimed

injury in the form of hypertension and psychiatric injury, including adjustment disorder and anxiety.

Applicant had a doctoral degree, but her entry‐level position did not require a college degree. Her

performance reviews showed that she had difficulty transitioning from an academic environment to

a State agency. Consequently, the applicant performed her work more slowly than her co‐workers.

This also resulted in poor performance reviews.

The applicant was evaluated by a psychologist who determined that she suffered from anxiety and

adjustment disorder, which were entirely caused by her interactions with her supervisor and her

perceived harassment by that supervisor. In addition, the doctor attributed her stress to the volume

of work she was asked to do.

The applicant was also evaluated by an agreed medical examiner in internal medicine for the

claimed hypertension. The doctor found that the hypertension was caused by stress. He also noted

that the stress was the result of applicant’s interactions with her supervisor.

The Workers’ Compensation Judge found that the applicant’s interactions with her supervisor were

considered good faith personnel actions. Therefore, her claim of injury to the psyche was barred.

However, he awarded 3% permanent disability and future medical care for hypertension.

Defendant filed a Petition for Reconsideration, arguing that all of the applicant’s claims were barred

by the good faith personnel action defense, per County of San Bernardino vs. McCoy.

The WCAB affirmed the Judge's decision. The Panel noted that this case was distinguishable from

McCoy because defendant failed to prove that applicant’s hypertension solely resulted from her

diagnosed psychiatric injury. Here, there was substantial evidence that other workplace stressors

(her workload) caused the stress that led to the hypertension.


19

“SUDDEN AND EXTRAORDINARY” EXCEPTION IN LABOR CODE §3208.3(D)

REFERS TO THE MECHANISM OF INJURY, NOT THE RESULTS OF THE INJURY

TRAVELERS CASUALTY & SURETY COMPANY vs. WCAB

(2016) 246 Cal.App.4th 1101

Applicant was employed as a live‐in maintenance supervisor for an apartment complex. At the time

of his injury on October 19, 2009, he had been employed by the defendant for only 76 days.

As he was walking from one apartment building to another in the rain, he slipped on a wet walkway

and sustained numerous injuries, including a fractured pelvis and injury to his neck, right shoulder,

right leg and knee. His treatment required several surgeries, not all of which were successful.

In addition to the physical injuries, applicant alleged injury to the psyche. The defendant asserted

the six‐month employment requirement in Labor Code §3208.3(d).

Following Trial, the Workers’ Compensation Judge found that the applicant was entitled to an award

for his physical injuries, but denied the claim of injury to the psyche because the applicant had been

employed for less than six months and his injury did not result from a sudden and extraordinary

condition of employment.

Applicant filed a Petition for Reconsideration which was granted (with Commissioner Caplane

dissenting). The Panel found that the injury to the psyche was caused by an extraordinary

employment condition.

Defendant filed a Petition for Writ of Review which was granted.

In annulling the award, the Court of Appeal relied on Matea vs WCAB for the proposition that an

“extraordinary employment condition” is “something other than a regular and routine employment

event or condition.” The event must be “uncommon, unusual and occur [ ] unexpectedly.” Here,

slipping on a wet sidewalk in the rain was not such an uncommon or unusual event.

Applicant’s attorney argued that the catastrophic nature of applicant’s injuries would also support a

finding of an extraordinary employment condition. The Court disagreed. It noted that the statute

refers to “sudden and extraordinary employment conditions,” not the nature of the injuries

resulting from an incident.


20

EITHER PARTY MAY REQUEST QME PANEL DURING 90‐DAY DELAY PERIOD

SANCHEZ vs. GRAPEVINE CATERING


Applicant filed a claim for workers’ compensation benefits. Pursuant to Labor Code §5402(b),

defendant placed the claim on delay.

On August 7, 2015, applicant submitted a Request for a QME Panel in the specialty of pain

management. On August 10, 2015, defendant submitted a QME Panel Request in the specialty of

orthopedics.

On September 2, 2015, the Medical Unit sent a letter to applicant stating that it could not fulfill the

Panel Request because it was premature per 8 CCR 30(d)(1). On September 4, 2015, the Medical

Unit issued a QME Panel in orthopedics as requested by defendant.

Applicant sought an Order invalidating the orthopedic Panel and compelling the Medical Unit to

issue a pain management Panel. That request was granted.

Defendant filed a Petition for Reconsideration (which should have been a Petition for Removal),

citing 8 CCR 30(d)(1), which states that “the claims administrator, or if none the employer, may

request a panel of Qualified Medical Evaluators...to determine whether to accept or reject a

claim….” Therefore, defendant argued that only the defendant has the right to request a QME Panel

during the delay period.

The Board rejected the defendant's argument, noting that the language of the Regulation did not

exclude applicant from requesting a QME Panel. Further, Labor Code §4062.2 states that “either

party may request the assignment of a three‐member panel of qualified medical evaluators to

conduct a comprehensive medical evaluation.” To follow the defendant's interpretation of the

Regulation would place it in conflict with the statute.


21

WCAB REJECTS WORKERS’ COMPENSATION JUDGE’S ORDER REQUIRING CLAIM ADJUSTER

TO PERSONALLY APPEAR AT ALL FUTURE HEARINGS

BURFORD vs. COOK CONCRETE PRODUCTS


Applicant sustained three industrial injuries while employed as a yardman by defendant. Two

injuries were covered by Everest National and the third involved a shared cumulative trauma

between Everest and Clarendon National. Everest was ordered to administer all medical treatment,

subject to periodic contribution from Clarendon.

There were numerous hearings over various medical treatment issues. A Mandatory Settlement

Conference was scheduled for October 13, 2015 to address one of these disputes. The adjuster for

Everest was not available via telephone during that conference. The Workers’ Compensation Judge

continued the hearing to January 12, 2016 and wrote on the Minutes of Hearing that the adjuster

for Everest was ordered to “personally appear at all future hearings” unless otherwise excused by

the Workers’ Compensation Judge in advance.

Defendant filed a Petition for Removal which was granted.

The Commissioners acknowledged the Workers’ Compensation Judge’s frustration with the adjuster

not being available by telephone at the Mandatory Settlement Conference. However, a blanket

order which covers all future hearings is excessive and overbroad, particularly since the Workers’

Compensation Judge did not offer any explanation of why it was necessary for the adjuster to

personally appear at all future hearings.


22

DUTY TO NOTIFY EMPLOYEE OF WORKERS’ COMPENSATION RIGHTS

NOT TRIGGERED UNTIL EMPLOYER HAS NOTICE OF INDUSTRIAL INJURY

OSTINI vs. ALMA ROSA WINERY


Applicant worked as a hostess for defendant winery. Applicant alleged that drinking was allowed

while on the job.

Applicant was involved in a motor vehicle accident while driving home from work (and after having

been drinking at work) on April 5, 2008. However, applicant did not file her Application for

Adjudication of Claim until February 6, 2013.

Defendant asserted the statute of limitations defense, as well as the intoxication defense in Labor

Code §3600(a)(4). The Workers’ Compensation Judge found that the claim was not barred by the

statute of limitations and awarded benefits.

Defendant filed a Petition for Reconsideration which was granted.

In reviewing the evidence, the Commissioners noted that applicant never returned to her job

following the motor vehicle accident and that there was no evidence she ever reported the accident

to her employer. Based on those facts, the Panel determined that there were no facts giving rise to

the employer’s duty to provide a claim form and notice of workers’ compensation rights. Therefore,

the statute of limitations was not tolled by the failure to provide a claim form.

Further, in specific injury cases (absent some basis for tolling) the statute of limitations runs from

the date of injury. Here, applicant did not file her Application until more than four years following

the date of injury.


23

WHEN DEFENDANT PROVES APPLICANT WAS GIVEN WRITTEN NOTICE OF

WORKERS’ COMPENSATION RIGHTS, BURDEN SHIFTS TO APPLICANT TO

PROVE STATUTE OF LIMITATIONS IS TOLLED

GALLAND vs. LOS ANGELES UNIFIED SCHOOL DISTRICT


Applicant claimed injury to his neck and back on July 20, 2009 while employed by the Los Angeles

Unified School District. However, applicant did not file an Application for Adjudication of Claim until

November 6, 2013.

Defendant asserted a statute of limitations defense. The Workers’ Compensation Judge found that

“defendant has not sustained its burden of proof with respect to the statute of limitations” and

issued an award for the applicant’s injury to the back, but not to the neck.

Defendant filed a Petition for Reconsideration which was granted.

The Board Panel reviewed the Trial record and exhibits and noted that the uncontradicted testimony

showed that the employer provided applicant with a claim form on August 13, 2009. There was no

evidence whether the applicant filed the claim form with the employer.

The record also showed that defendant denied the claim on October 16, 2009. Therefore, applicant

had one year from that date within which to file his Application. The applicant offered no evidence

to show he did not receive the claim form or denial. Therefore, because he did not file the

Application within one year of the date of the denial, the claim was barred by the statute of

limitations.


24

BOARD PANEL REJECTS PERMANENT DISABILITY RATING BASED

ON ESTIMATED LOSS OF USE OF BODY PART

WEAVER vs. LOS ANGELES UNIFIED SCHOOL DISTRICT


Applicant was employed concurrently by two employers, the Los Angeles Unified School District and

Federal Express. Applicant claimed injury to her right hand/wrist while working for Federal Express

and to her left hand/wrist as a result of a student running into her.

The parties used an Agreed Medical Evaluator to address both injury claims. The doctor provided

impairment ratings under the AMA Guides which resulted in 19% permanent disability for each arm.

He also offered an alternative rating per Almaraz/Guzman in which he estimated that the applicant

had lost 50% of her ability to use each arm. Since the maximum impairment for an arm is 60%, the

doctor assigned 30% impairment for each upper extremity.

The Workers’ Compensation Judge rejected the Almaraz/Guzman rating and issued two 19%

permanent disability awards.

The applicant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board

denied the petition.

The Commissioners noted that an alternative rating may be used only when it more accurately

reflects the employee’s impairment and that an evaluator must show how and why the alternative

rating is more accurate than the AMA Guides rating. In doing so, the doctor cannot simply estimate

the loss of use of a body part and directly translate that number into a percentage of impairment to

the body part. “Loss of use is not directly proportional to impairment under the AMA Guides.”


25

AME’S GENERAL “CRITICISM” OF THE AMA GUIDES NOT SUFFICIENT

TO SUPPORT ALMARAZ/GUZMAN RATING

CONSTANTINO vs. QUEENSCARE


Applicant received an award of 70% permanent disability resulting from a September 24, 2004 injury

to her back, right shoulder and psyche. The Workers’ Compensation Judge relied on the orthopedic

AME’s opinion rating the applicant’s lumbar spine injury at 45% Whole Person Impairment under

Almaraz/Guzman, rather than 31% WPI using a strict AMA Guides rating.

In his report explaining his alternative rating, the doctor stated that “the Guides do not take into

consideration pain or subjective factors, and does not take into consideration work restrictions or

inability to resume pre‐injury occupation.”

The defendant filed a Petition for Reconsideration, arguing that the AME’s opinion was not sufficient

to rebut the AMA Guides rating. The Board Panel agreed.

The Commissioners reviewed the history of Almaraz/Guzman and the requirement that an

evaluating physician explain “how and why” the alternative rating is most accurate. Here, the AME

did not explain why the AMA Guides scheduled rating did not accurately reflect the applicant’s

impairment. Rather, he offered a general criticism of the AMA Guides as a whole. That is not

sufficient to rebut the scheduled rating.

Using the scheduled rating, the applicant received an award of 54% permanent disability.


26

VOCATIONAL EXPERT’S REPORT FAILS TO SUPPORT DIMINISHED FUTURE EARNING CAPACITY

GRAHAM vs. ECOLAB


Applicant alleged injury to his back, digestive system and psyche on September 8, 2008 while

working as a pest control employee for defendant.

Using a scheduled rating, applicant’s disability rated 35% permanent disability. However, applicant’s

attorney retained a vocational expert who, relying on an analysis of “similarly situated workers,”

opined that applicant had a diminished future earning capacity which would support an award of

78% permanent disability.

The Workers’ Compensation Judge rejected the vocational expert’s opinion as lacking substantial

evidence. Further, the reliance on an analysis of “similarly situated workers,” without addressing

applicant’s amenability to vocational rehabilitation, had already been rejected by the First District

Court of Appeal in Dahl.

The Workers’ Compensation Judge specifically cited the fact that the vocational expert had not met

with or even interviewed the applicant. As such, he did not learn that after his injury in California,

applicant had moved to Texas where he had worked at more than one job, had earnings of at least

$16 per hour, and had sustained a work‐related injury. Consequently, the vocational opinion was

not based on substantial evidence.

The Workers’ Compensation Judge awarded 35% permanent disability.

Applicant’s attorney filed a Petition for Reconsideration which was denied.


27

TRIAL JUDGE IMPROPERLY APPLIED ORTHOPEDIC APPORTIONMENT TO

ALL CATEGORIES OF PERMANENT DISABILITY

UNSWORTH vs. GRANDVIEW REAL ESTATE


Applicant was working as a project manager for defendant when he sustained injury to his spine,

hips, legs and psyche. The applicant was evaluated by Agreed Medical Examiners in orthopedics and

psychiatry.

The applicant’s medical history included a prior low back injury which required surgery and a

diagnosis of multiple sclerosis. The orthopedic AME found 30% Whole Person Impairment, with 25%

apportioned to the prior injury and non‐industrial medical condition.

The psychiatric AME diagnosed an organic brain syndrome secondary to multiple sclerosis;

depression; and long‐standing anxiety disorder. However, the doctor was of the opinion that, while

the industrial injury contributed to the depression and anxiety, it was not the predominant cause.

He also noted that as a result of the combined effect of the physical and psychological conditions,

applicant was permanently totally disabled.

The parties also utilized vocational experts, each of which agreed that the applicant could not

compete in the open labor market.

The Workers’ Compensation Judge found that applicant was permanently totally disabled as a result

of both industrial and non‐industrial factors and apportioned 75% of the impairment to the

industrial injury, relying on the orthopedic AME’s opinion.

Defendant sought reconsideration, arguing that the psychiatric injury did not meet the predominant

causation threshold and that the permanent disability award was not supported by the evidence.

The Commissioners rejected the defendant’s argument regarding predominant cause, since

defendant had stipulated to psychiatric injury on the Pre‐Trial Conference Statement.

However, they agreed that the Workers’ Compensation Judge had incorrectly found permanent

total disability, especially since the orthopedic AME had opined that from a strictly physical

standpoint, applicant could return to light work. They also found that the Workers’ Compensation

Judge had improperly applied the 25% orthopedic apportionment to the psychiatric impairment as

well.

The case was remanded to the Trial Judge to further develop the record on the issue of permanent

disability and apportionment.


28

LABOR CODE §4664 APPORTIONMENT REQUIRES OVERLAP

BETWEEN CURRENT INJURY AND PRIOR AWARD

KUDELKA vs. CITY OF COSTA MESA


Applicant was employed by defendant City as a firefighter for approximately 29 years. On June 2,

2010, the applicant and City entered into Stipulations with Request for Award at 36% permanent

disability due to injury to the “heart [aortic valve replacement].”

On June 3, 2013, applicant filed an Application for Adjudication of Claim alleging injury to the

circulatory system, skin, head and several other body systems. The applicant was evaluated by

various specialists and the DEU rated the reports a combined 76% permanent disability.

The injury to the circulatory system alone rated 57% and the Workers’ Compensation Judge

subtracted the prior award to the heart, resulting in 21% permanent disability for that body part.

He combined that impairment with the permanent disability for the other body parts and issued an

award of 48% permanent disability.

Applicant filed a Petition for Reconsideration. He argued that the prior award was for valvular heart

disease, while the current injury involves hypertensive heart disease. Therefore, the impairments

did not overlap. The WCAB Panel agreed.

The Commissioners noted that the two types of heart disease are distinct. The AMA Guides rates

valvular heart disease in Table 3‐5, while the hypertensive heart disease is rated in Table 4‐2.

Further, prior case law (City of Pasadena vs. WCAB) has held that hypertension and hypertensive

heart disease are distinct injuries, even when caused by the same exposure.

Because the two types of heart disease are distinct and separate injuries, defendant failed to

provide overlap as required in order to receive the benefit of Labor Code §4664 apportionment.


29

APPLICANT INJURED ON WAY TO MEDICAL OFFICE VISIT FOR TWO INDUSTRIAL INJURIES ENTITLED

TO UNAPPORTIONED AWARD OF PERMANENT TOTAL DISABILITY

DAWSON vs. SAN DIEGO TRANSIT


Applicant was employed by the defendant as a bus driver for 34 years. During the course of her

employment, she sustained a number of injuries, including two separate injuries to her left and right

shoulders.

The applicant had undergone shoulder surgery. While traveling to her doctor’s office for a follow‐up

visit, she was involved in a motor vehicle accident which left her a quadriplegic. She sought

workers’ compensation benefits for permanent total disability because the injury occurred en route

to her industrial medical appointment.

The defendant did not dispute the fact that applicant was permanently totally disabled. However,

defendant argued that the permanent disability should be apportioned between the two shoulder

injuries for which the applicant was treating at the time of the motor vehicle accident.

The Workers’ Compensation Judge issued an unapportioned award of permanent total disability.

The defendant filed a Petition for Reconsideration.

In denying reconsideration, the Board Panel noted that defendant failed to carry its burden of proof

on the issue of apportionment. Defendant failed to show that one or the other of the prior shoulder

injuries in any way caused or contributed to the applicant’s paralysis. The cause of her disability was

a spinal cord injury resulting from the motor vehicle accident, not her prior shoulder injuries.


30

UTILIZATION REVIEW DENIAL MUST BE COMMUNICATED TO REQUESTING

DOCTOR VIA TELEPHONE, FAX OR EMAIL AND IN WRITING

DALLAS vs. PAN PACIFIC PETROLEUM


Applicant sustained injury to his back on January 9, 2011 for which he was entitled to receive future

medical care.

On September 4, 2014, his treating physician submitted a Request for Authorization for spinal

surgery. The defendant made a timely Utilization Review decision to non‐certify the requested

treatment. The decision was faxed to the treating doctor within 24 hours. However, thereafter, the

decision was not sent to the doctor in writing within two business days.

Applicant filed a Declaration of Readiness for expedited hearing. The Workers’ Compensation Judge

found that the Utilization Review decision was invalid because it was not communicated to the

doctor in writing within two business days following the initial fax notification. He awarded the

requested surgery.

Defendant filed a Petition for Removal (which should have been a Petition for Reconsideration). The

WCAB denied the petition.

The Board noted that Labor Code §4610(g)(3)(A) creates a two‐step process for timely

communication of a Utilization Review determination. Both steps (initial communication via

telephone, fax or email within 24 hours and written notification within two business days) must be

completed for the Utilization Review decision to be valid. Failure to comply with both steps

invalidates the Utilization Review decision and allows the Workers’ Compensation Judge to decide

the treatment issue.


31

UNTIMELY UTILIZATION REVIEW DECISION IS INVALID AND WCAB MAY DETERMINE IF

REQUESTED TREATMENT IS REASONABLE AND SUPPORTED BY MEDICAL EVIDENCE

THOMPSON vs COUNTY OF LOS ANGELES


Applicant sustained an admitted injury to her back on June 15, 2007. She received a stipulated

award in 2011. Thereafter, applicant changed attorneys. Her new attorneys served defendants with

a Substitution of Attorneys form. However, the Board’s Official Address Record did not reflect the

change.

On March 26, 2015, applicant’s treating physician submitted a Request for Authorization for an L4‐5

laminectomy and microdiscectomy. On April 7, 2015, defendant’s Utilization Review company sent

a non‐certification letter to applicant’s former attorney, but not her current counsel.

After receiving the treatment denial, applicant’s attorney filed a Declaration of Readiness and the

matter was tried on November 16, 2015. The Workers’ Compensation Judge found that the

Utilization Review decision was invalid because it was not served on applicant’s current attorney.

He also awarded the requested treatment.

Defendant filed a Petition for Reconsideration, arguing that the Utilization Review decision was

timely served on the applicant’s attorney as reflected on the Board’s service list. The WCAB rejected

that argument, especially since it was clear that the defendant had been notified of the Substitution

of Attorneys prior to the Utilization Review decision. However, the Board found that the need for

the medical treatment requested was not supported by substantial evidence. Therefore, the

Workers’ Compensation Judge’s award of the treatment was annulled.


32

WCAB GRANTS APPEAL OF IMR DECISION BASED ON MISTAKE OF FACT

GONZALEZ‐ORNELAS vs. COUNTY OF RIVERSIDE


Applicant sustained injury to her bilateral knees. On July 23, 2015, her treating physician submitted

a Request for Authorization to provide Synvisc injections for both knees. Defendant submitted the

request to Utilization Review and on July 30, 2015 a Utilization Review issued denying authorization.

Applicant requested Independent Medical Review of the Utilization Review denial. On September

11, 2015, the Utilization Review decision was upheld by IMR. On October 12, 2015, applicant

appealed the IMR decision pursuant to Labor Code §4610.6(h). The Workers’ Compensation Judge

denied the appeal and applicant filed a Petition for Reconsideration.

The WCAB granted reconsideration and ordered a new IMR per Labor Code §§4610.6(h) and

4610.6(i). In support of the decision, the Panel noted that among the records submitted for review

by the IMR physician was a report from applicant’s doctor documenting various conservative

treatment attempts. However, the IMR decision stated, “There is no documentation that the

patient failed conservative therapies.” This constituted a mistake of fact on the part of the

reviewer. Therefore, a new IMR was appropriate.


33

APPLICANT’S UNSUCCESSFUL ATTEMPTS TO OBTAIN TREATMENT FROM

5 PHYSICIANS OUT OF MORE THAN 65 NAMES ON DEFENDANTS’

MPN DID NOT ALLOW APPLICANT TO TREAT OUTSIDE MPN

De GUEVARA vs. La GOLONDRINA


Applicant sustained injury to her right upper extremity, lumbar spine and bilateral knees. The

defendants notified the applicant of its Medical Provider Network and provided a list of doctors

based on the applicant’s ZIP Code. The list contained more than 65 physicians.

Applicant contacted five doctors from the MPN list, all of whom refused to treat the applicant.

Based on these efforts, applicant alleged that treatment was not reasonably available within the

MPN. Therefore, she sought to treat outside the MPN.

The Workers’ Compensation Judge denied the request and applicant filed a Petition for Removal.

The WCAB denied the Petition for Removal, noting that defendants’ MPN had more than 50

orthopedic surgeons and 15 chiropractors within 15 miles of applicant’s ZIP Code. Given the large

number of doctors available, applicant’s attempts to contact only five were insufficient to allow her

to treat outside the MPN.

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