In Ceja v. Taylor Farms Pacific, 2021 Cal. Wrk. Comp. P.D. LEXIS 79, the WCAB held that the applicant did not meet her burden of proof to show the medical necessity of the disputed medical treatment because the primary treating physician’s reports did not include citations to the medical treatment utilization schedule (MTUS) or other evidence-based treatment guidelines per Labor Code §5307.27. The Board affirmed the Findings of Fact, Award, and Order and Opinion below that determined the applicant failed to meet her burden to establish that the disputed medical treatment was medically necessary based on substantial evidence.
The primary treating physician (PTP) in Ceja submitted a request for authorization (RFA) requesting a right knee arthroscopy. A utilization review UR decision issued 3 days later and was served on the PTP and applicant but not applicant’s attorney. The parties stipulated that the UR determination was not timely served on applicant’s attorney and the WCAB determined the Appeals Board had jurisdiction to determine whether the requested right knee arthroscopy was medically necessary.
In its analysis, the Board noted that, when a UR decision is untimely, an injured employee is still only entitled to reasonably required medical treatment as outlined Labor Code §4600(a). Pursuant to Labor Code 5705, the burden of proof rests upon the party holding the affirmative of the issue. In the case of medical treatment, Labor Code §4604.5 outlines that the MTUS adopted by the administrative director in Labor Code §5207.27 are presumptively correct on the issue of extent and scope of medical treatment.
The WCAB emphasized that the applicant has the burden of showing entitlement to the disputed treatment based on substantial medical evidence. Because the PTP’s reports did not include citations to the MTUS or other evidence-based treatment guidelines in support of the need for the requested knee surgery per Labor Code §5307.27, the WCAB determined the failed to meet her burden to establish that the right knee arthroscopy was medically necessary.
We have all encountered an applicant’s attorney who argues that requested treatment must be authorized when a UR decision is untimely. This case should serve as a reminder that when a UR decision is arguably untimely the applicant has the burden to prove requested treatment is medically necessary based on substantial evidence. While a majority of these disputes can and should be resolved informally, in cases where the disputed medical treatment include surgery or other procedures that carry a high cost and/or risk of potential complications and UR non-certifies the treatment, it may be worthwhile to try the issue of medical necessity.
An untimely UR decision does not require automatic authorization of the requested treatment.
If a UR decision is determined to be untimely, the Appeals Board has jurisdiction to determine medical necessity of the requested treatment and the applicant has the burden of proving his or her entitlement to the dispute medical treatment based on substantial medical evidence.
When opposing counsel raises an argument that a UR decision issued untimely, review the medical reports submitted with the RFA as well any other recent treatment reports to determine whether the treater referenced the MTUS or other evidence-based treatment guidelines.
Especially in cases where the disputed UR decision non-certifies treatment, pay particular attention to why the treatment was non-certified, This reasoning can be used in a brief to show why the requested treatment is not medically necessary should the issue need to be tried.
By Lauren M. Coleman, Esq., Associate Attorney, Oakland Office May 2021
The recent panel decision, Marva Smith v. Solar Turbines, Inc., ADJ12010500, reads like a crime thriller novel with a dizzying, whirlwind of conspiracy theories postulated