California: When Utilization Review Determination Untimely, No Portion of UR Determination Could Be Relied on to Deny Medical Treatment

WCAB panel issues a new post-Dubon II decision

In Korn v. Entertainment Partners, 2014 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel affirmed a WCJ’s finding that an applicant, who was employed as a craft services person, suffered an industrial injury to her low back and right shoulder on 5/4/2010 and was entitled to medical treatment in the form of “L4-L5 and L5-S1 and anterior interbody fusion with cage and allograft and L4-L5 and L5-S1 posterolateral fusion with screws and allograft” as recommended by her primary treating physician, Dr. John Larsen.

The WCAB held that, because the defendant’s utilization review (UR) was untimely and, therefore, invalid pursuant to the holding in Dubon v. World Restoration, Inc., 79 Cal. Comp. Cases --, 2014 Cal. Wrk. Comp. LEXIS 131 (lexis.com) (Lexis Advance) (Appeals Board en banc opinion) (Dubon II), the issue of medical necessity was not subject to independent medical review and was properly determined by the WCJ based upon substantial medical evidence.

The WCAB held that, here, the substantial medical evidence included the applicant’s unrebutted testimony regarding the attempts at conservative treatment and the impact of injury on her activities of daily living as corroborated by the reports of Dr. Larsen. Since the UR determination was untimely, no portion of the UR determination could be relied upon by the defendant to deny the medical treatment. The WCAB also held that the defendant presented no evidence or legal authority to support its position that the requested medical treatment must be consistent with the Medical Treatment Utilization Schedule.

The WCAB pointed out that, contrary to the comment in the WCJ’s report, it is the applicant, not the defendant, who has the burden of proving that the requested medical treatment is reasonably required.

Read the Korn noteworthy panel decision.