Wherever you stand on the pumpkin spice latte debate, we can all agree that fall has arrived.This month, we also celebrate Labor Day, which became an official federal holiday in 1894.Labor Day is a day to celebrate the American labor movement, with all its struggles, conversations, and compromises between employers, employees, and society at large.Here is to the hope that we all continue to seek a balance between health and productivity in the workplace.


In keeping the health of California workers in mind, the Department of Industrial Relations (DIR) recently issued an alert, noting that Cal/OSHA is reminding employers to prepare for hazards from power outages during the recent heat wave, which hopefully is behind us.

In its alert, the DIR notes that California employers must have an Emergency Action Plan to keep workers safe during power outages, fires and other emergencies that could cause safety issues at worksites.

In order to protect employees, employers must take steps to ensure safety at worksites during power outages, which include:

  • Lighting – emergency backup power is required for lights needed during an emergency.
  • Doors – All powered doors must be able to be opened manually in a power outage.
  • Ventilation – Stop work that requires electrically powered ventilation until power is restored.
  • Machinery and equipment – Shut off electrically powered equipment during an outage and stay clear of moving parts when the power returns.
  • Generators – Ensure generators are used safely, including only using generators outdoors and ensuring they are properly grounded.

Cal/OSHA Reminds Employers to Prepare for Hazards from Power Outages during Heat Wave | California Department of Industrial Relations


On September 15, 2022, the DIR also announced that the Division of Workers’ Compensation (DWC) will offer online workshops for injured workers, beginning on October 7, 2022. In its announcement, the DIR notes that the online workshops will expand the DWC’s mission to assist injured workers, beyond the physical locations of its 23 district offices and satellite locations.

According to the DIR, these free one-hour workshops will include topics on the following:

  • Injured workers’ right to medical treatment
  • Disability payments
  • Returning to work after an injury
  • Resolving disagreements about claims

The workshops will consist of a presentation, followed by a question-and-answer session. The workshops are designed to provide injured workers with a general understanding of the workers’ compensation system.

DWC Announces Online Injured Worker Workshops | California Department of Industrial Relations


As noted in a recent LexisNexis article, in Zepeda v. Starview Adolescent Center, 2022 Cal. Wrk, Comp. P.D. LEXIS 166 (Board Panel Decision), the WCAB provides clarification on the burden of proof and what must be shown before termination of ongoing treatment.

The Applicant, Mr. Armando Zepeda, sustained a July 30, 2018 injury to his brain and head as a result of a fall while working as a teacher.

In June 2020, Applicant’s Primary Treating Physician (PTP) Dr. David Patterson submitted a request for inpatient residential rehabilitation (hereinafter, treatment) at Casa Colina from June 4, 2020, to August 24, 2020, which was certified by UR. On February 18, 2021, Dr. Patterson submitted a request for authorization of continuation of treatment, which was denied by UR. Dr. Patterson submitted a second request for continuation of treatment on March 17, 2021, which was denied by UR. Dr. Patterson appealed the denial, noting that there had been no change in Applicants’ condition. On March 30, 2021, UR granted the appeal and modified the denial to certify an additional 30 days of treatment. On March 22, 2021, Dr. Patterson made a third request for continuation of treatment. UR denied the request, noting that there was no evidence of measurable improvement. Applicant’s appeal of the UR denial was denied by IMR. On May 14, 2021, Dr. Patterson submitted a fourth request for continuation of treatment for an additional 60 days of treatment, which was denied without medical review, based on the prior UR appeal denying certification.

The matter went to an Expedited Hearing and Applicant argued that absent a documented change in condition demonstrating that continued inpatient rehabilitation is no longer reasonably required, Defendant cannot deny such treatment, pursuant to the Patterson decision. Defendant argued that the Medical Treatment Utilization Review Schedule (MTURS) did not support continued treatment and that UR and IMR were the exclusive remedy to resolve the dispute. The WCJ found that Patterson did not apply, and that Applicant’s sole remedy was to submit to the UR/IMR process.

Applicant filed a Petition for Reconsideration, which was granted by the appeals board.

In its holding, the court discussed the Patterson decision, which held that an employer cannot stop providing previously authorized treatment to an injured worker, without substantial medical evidence of changed conditions. The court explained Patterson’s rationale, in that an employer’s authorization of treatment is an acknowledgement that such treatment is reasonable and necessary. When continuation of treatment is at issue, it is Defendant’s burden to prove that continuation of such treatment is not reasonably necessary as a result of a change in Applicant’s condition. Thus, the court held that once Defendant authorized the treatment, it was prohibited from submitting subsequent requests for continuation of treatment to UR without substantial evidence of changed conditions. The panel rescinded the WCJ’s decision and issued a new decision that Applicant was entitled to a continuation of inpatient treatment until Defendant established that discontinuance of treatment is warranted because of changed conditions.

Practice Tips:

When defendants authorize treatment through the UR/IMR process, the authorization is an implied agreement that such treatment is reasonable and necessary to cure or relieve the effects of an industrial injury. If a treating physician requests continuation of treatment, the burden shifts to defendants to show that continuation of care is no longer reasonable and necessary, due to changed conditions. Defendants cannot shift its burden to the applicant by relying on the UR/IMR process. In addition, prior to discontinuing treatment, defendants must notify the treating physician of the pending discontinuation and develop an appropriate treatment plan for the injured worker.

Finally, it is important to note that Zepeda is a panel decision only and is not binding precedent.

For a more detailed analysis of the Zepeda decision, please click the link below.

California: Continuation of Treatment Previously Certified by Utilization Review

This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office.  A copy of this Bulletin and the most current twelve months is available on our website at: www.mulfil.com/bulletins

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