Brice Sandhagen v Cox & Cox Construction, and SCIF, (2005), 70 CCC 208, Appeals Board en banc
Eleen Y. Vallejo
Applicant filed a Petition for Reconsideration on the 2004 decision. The Petition was dismissed as not being filed on a final order.
This Appeals Board decision holds that, although establishment of a UR process is mandatory under Section 4610, there is nothing in Section 4610 that requires UR be used in every instance and it is not something that must be exhausted before proceeding to the Section 4062 AME/QME process.
Brice Sandhagen v Cox & Cox Construction, and SCIF, (2004), 68 CCC 1452, Appeals Board en banc
Eleen Y. Vallejo
Applicant sustained admitted injuries to his neck, back, left elbow and left wrist on October 22, 2003. His treating doctor referred him for surgical consultation.
On May 14, 2004, the consulting doctors recommended MRIs of the cervical and upper thoracic spine. The May 14, 2004, report was faxed to SCIF’s UR department on May 24, 2004.
On June 10, 2004, the injured worker filed a DOR for expedited hearing on the issue of entitlement to medical treatment and asserted that SCIF did not satisfy the time limits of L.C. Section 4610.
On June 21, 2004, SCIF’s medical consultant issued a report indicating that utilization review was conducted relative to the request for authorization to proceed with MRIs. The requested treatment was denied based on ACOEM guidelines. The denial was late.
F & A issued finding that the applicant was entitled to the MRIs recommended by the surgical consultants and that the UR report from SCIF’s medical consultant was excluded from evidence because it failed to meet the deadlines of L.C. Section 4610.
The Board issued its en banc decision holding:
1. The UR time deadlines of section 4610(g)(1) are MANDATORY and, if defendant fails to meet the mandatory deadlines, it is precluded from using the UR procedure for the particular medical treatment dispute;
2. If defendant undertakes an untimely UR procedure, any UR report obtained relative to that particular treatment in dispute is NOT admissible in evidence and any UR report obtained CANNOT be forwarded to an AME or QME if section 4062(a) procedures are timely pursued;
3. When a defendant does not meet the section 4610(g)(1) deadlines, it MAY use the procedures established by section 4062(a) to dispute the treating physician’s treatment recommendation. The DEFENDANT becomes the objecting party and must then meet the section 4062(a) deadlines unless those are extended for good cause or by mutual agreement.
Michael A. Willette v AU Electric Corporation and State Compensation Insurance Fund, (2004) 68 CCC 1298, Appeals Board en banc
Eleen Y. Vallejo
This en banc decision pertains to procedures to be followed when the injured worker is NOT represented.
Applicant was examined by defendant’s QME on December 15, 2003 and was found to have sustained an industrial injury to his low back and tailbone on October 13, 2003. The defense QME found that the applicant was P & S as of 12/15/03, there was no P.D., and that applicant would need six weeks of physical therapy.
After this examination, applicant started treating with an orthopedic surgeon and a pain management doctor. Both doctors prescribed a TENS unit, water therapy and acupuncture. Defendant routed these requests through utilization review. Based on the UR reports, defendant denied the treatment. The UR reports concluded that the IW had been declared P & S without any disability and that he was not in need of any further medical treatment at that time. Further, there was no justification given for the requested treatment and the requested treatment did not fall within the ACOEM Guidelines.
Applicant filed for hearing and the Judge excluded the UR reports because they are not the reports of an examining or treating doctor.
Findings and Award issued finding that applicant sustained industrial injury to his low back and tailbone on October 13, 2003, and that he would need further medical treatment to cure or relieve the effects of his injury, including the treatment jointly prescribed by his PTP and his secondary pain management doctor, consisting of a TENS unit, water therapy, and acupuncture.
Defendant filed for reconsideration contending that
(1) the UR reports should have been received in evidence consistent with the UR process of Labor “Code Section 4610;
(2) the ACOEM Guidelines were presumptively correct on the issue of extent and scope of medical treatment;
(3) the UR reports observe that the ACOEM Guidelines do not find acupuncture to be effective and do not recognize TENS units to be an effective modality of treatment; and
(4) even if the UR reports are not admissible, there was no evidence to support the judge’s conclusion that the ACOEM Guidelines supported the requested treatment; that a variance from the ACOEM Guidelines was warranted, or that other evidence based medical treatment guidelines support the treatment requested.
The WCAB held:
Germanetti v Workers' Compensation Appeals Board, (2006) 71 CCC 421
Eleen Y. Vallejo
The WCJ found that applicant had sustained a psychiatric injury AOE/COE but it was barred by L.C. § 3208.3(h) because the injury was substantially caused by a good faith personnel action. The applicant claimed that he was harassed by his supervisor. The harassment took the form of the supervisor allegedly inappropriately questioning the applicant in meetings and giving him poor job evaluations.
The WCAB found that the supervisor’s actions were done to track status of projects and to manage the defendant’s business and as such constituted a good faith personnel action within the meaning of L.C. § 3208.3(h).
Maeta v Workers' Compensation Appeals Board, 34 CWCR 123 (Writ issued 5/3/06)
Eleen Y. Vallejo
The applicant was employed at Home Depot for less than six months when a shelf of lumber collapsed at work crushing his leg. The WCJ concluded that the incident constituted a sudden and extraordinary event. The WCAB reversed and from that decision a writ has been granted.
CIGA v Workers' Compensation Appeals Board, (2006) 71 CCC 808
Eleen Y. Vallejo
Applicant sustained an underlying physical injury which occurred on January 11, 1996. The applicant had not yet worked six months at the time of injury; however, he thereafter returned to work and worked for a period in excess of six months. The Court held that the claim was not barred by the six-month rule as there is nothing in the statute that requires that the six months be completed prior to the occurrence of the specific event.
CIGA v Workers' Compensation Appeals Board (Fernandez), (2006) 71 CCC 629
Eleen Y. Vallejo
The applicant sustained an admitted specific injury on 10/25/99 to his neck, left shoulder and back. The injury occurred before he had worked six months on the job. After the injury the applicant did return to work and, combining the days before and after the injury, he did work in excess of six months. The Court therefore concluded that the six-month limitation did not bar the psychiatric claim which occurred as a compensable consequence and applicant had thereafter satisfied the six-month rule.
Zarazosa v Workers' Compensation Appeals Board, (2006) 71 CCC 981
Eleen Y. Vallejo
The applicant sustained an admitted back injury. The applicant was found to be P&S orthopedically but was entitled to psychiatric treatment to cure or relieve from the effects of the orthopedic injury. The Court held that the applicant was not entitled to TD for her non-industrial psychiatric problems.
Sonoma State University v Workers' Compensation Appeals Board, (2006) 71 CCC 1059
Eleen Y. Vallejo
Employee Huton filed a psychiatric CT claim through August 2000. An Agreed Medical Examiner was used who opined that 35% of applicant’s current psychiatric disability was due to industrial factors and 65% to non-industrial.
The Agreed Medical Examiner identified three disorders: 1) an adjustment disorder; 2) a dysthymic disorder; and 3) avoidant personality traits. The AME said the adjustment disorder was 100% industrially caused. The WCJ found that applicant suffered industrial psychiatric injury, determining that applicant had met the predominant cause standard of L.C.§3208.3. The WCAB upheld, again stating that the condition was predominant because 100% of her adjustment disorder was industrially caused.
In reviewing L.C.§3208.3, the Court of Appeal held that an employee seeking compensation must demonstrate by a preponderance of evidence that the actual events of employment were predominant as to all causes combined of the psychiatric injury. The Court held that a claimant’s psychiatric injury satisfies the standard for compensability set forth in L.C.§3208.3 only if it is proven that the events of employment were predominant as to all causes combined of psychiatric disability taken as a whole, which applicant did not meet in this case.
Dwight Smith v. WCAB, David Amar v. WCAB, (Jan 2007) Superseded by grant of Review
Eleen Y. Vallejo
The Court is to determine whether applicant attorneys can be awarded attorney fees under LC 4607 when they enforce medical awards after a denial of treatment, even if the denial was based on good faith.
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