California: Recent Board Panel Decision Applies Dubon II and Patterson

Castillo v. Midnight Impressions, 2022 Cal. Wrk. Comp. P.D. LEXIS – (Appeals Board noteworthy panel decision), should be read and kept handy by all workers’ compensation practitioners who represent or defend parties involving brain injury cases. The decision is replete with case law citations on the issue of continuing medical treatment in catastrophic cases. This case presents a line drawn between when a primary treating physician in a brain injury case has to renew Requests for Authorization (RFAs) for outpatient post-acute rehabilitation treatment versus having a continuing authorization due to no change in medical circumstances under the Patterson case.

This case started with a routine untimely denial of a request for authorization for continuing Applicant’s outpatient physical rehabilitation. The untimely UR denial was simply the result of Defendant sending the UR denial notice to a wrong suite number at the Applicant attorney’s address [8 Cal. Code Reg. § 9792.9.1 says UR denials have to be served on the Applicant and the Applicant’s attorney, if any, but not on defense counsel]. The RFA requested outpatient physical rehabilitation, transitional living center day treatment at Casa Colina, transportation, and interpreter services until they are not reasonably required under Labor Code section 4600.

The Appeals Board panel upheld the trial judge’s finding of Defendant’s untimely UR denial and carried the case further by indicating even though the Applicant met her burden of proving continuing medical necessity for these services under the MTUS, doing so was unnecessary since there was no change in circumstances concerning the Applicant’s continuing need for the services requested in the RFA under the Patterson case. This case is nothing more than a recent application of the 2014 WCAB en banc decision of Dubon v. World Restoration Inc. (2014) 70 Cal. Comp. Cases 1298, commonly referred to as “Dubon II.” The WCAB in Dubon II indicates that if there is an untimely utilization review denial, the Applicant still has the burden of proving medical necessity for the underlying RFA under the Medical Treatment Utilization Schedule.

In any case in which continuing treatment is requested, the requesting physician must always articulate how the injured worker is improving from the continuing treatment and further improvement is expected if the requested treatment is provided. In this case, the Appeals Board felt that the treating physician sufficiently articulated the continuing improvement the Applicant was experiencing from her treatment and that no change in circumstances had yet occurred. In this case, the Appeals Board reiterates that when there is a need for a new RFA: “…a request for an RFA must be based on a change in applicant’s condition or circumstances sufficient to show that the treatment is no longer reasonably required to cure or relieve the effects of the industrial injury. It is defendant’s burden to show that the continued provision of the services is no longer reasonably required because of a change in applicant’s condition or circumstances. Defendant cannot shift its burden onto applicant by requiring a new RFA and starting the process over again.” The Appeals Board indicated that Defendant failed to show a change in circumstances had occurred to justify the need for periodic utilization reviews of the post-acute care of this brain injured patient.

One interesting observation in this decision is the Appeals Board panel seems to make the specific finding that this Applicant’s brain injury is a “catastrophic injury” which opens the door for her to ultimately receive permanent disability benefits for any psychiatric sequelae from this head injury as an exception to the limitations under Labor Code section 4660.1.

Another important take away in this case for Applicant attorneys is for them to be present and to actively participate in the transitional care meeting with the primary care physician, nurse case manager, and physical medicine and rehabilitation specialists when the injured worker is to be transferred from an acute care facility to an outpatient rehabilitation facility. Applicant’s counsel should also attend and participate in the final transitional meeting when the patient is to be discharged from the rehabilitation facility to his or her home.

Note: The PDF for Castillo is below.

Reminder: Board panel decisions are not binding authority.

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