What the panel ordered
The WCAB granted the Petition for Reconsideration, rescinded the finding allowing the deposition of Dr. Lisa Pitino, and otherwise affirmed the October 3, 2023 Findings and Award allowing the deposition of the person most knowledgeable at Ericsson regarding earnings and earning capacity.
Defendant filed a Petition for Removal challenging the WCJ's Findings and Award allowing depositions of the Utilization Review physician and the person most knowledgeable at Ericsson regarding earnings and earning capacity; the WCAB treated the petition as one for reconsideration and reviewed the issues of discovery and deposition permissions.
This docket was decided more than once. Shown here is the latest released decision; we also hold August 9, 2022.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB concluded there was no legal basis to depose Dr. Pitino to validate whether she performed the utilization review, as disputes over UR decisions must be resolved by independent medical review (IMR). The deposition was rescinded on reconsideration.
From the decision · page 6Based on the foregoing, we conclude that there was no legal basis for applicant to depose Dr. Pitino to validate whether she performed the UR. We will therefore grant reconsideration on this issue and rescind the portion of the F&A finding that good cause existed to allow applicant to depose Dr. Pitino on this topic.
The WCJ found good cause to allow the deposition of the PMK regarding earnings and earning capacity as relevant to the applicant's disability rate, and the WCAB found no substantial prejudice or irreparable harm to defendant from allowing the deposition.
From the decision · page 4As to the issue if there is good cause for the Applicant to conduct the deposition of the person most knowledgeable (PMK) for Ericsson as to earnings and earnings capacity, it is found that there is good cause and that Applicant is entitled to conduct the deposition. The Applicant's earnings potential/capacity may be relevant to the issue of the applicant's disability rate.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained an admitted injury on April 19, 2019, arising out of and in the course of employment.
Favours Applicant prevailed
This finding establishes the threshold issue of compensability, making the F&A a final order subject to reconsideration.
From the decision · page 2The WCJ's Report provides the following relevant factual background: The Applicant sustained an admitted injury on April 19, 2019 as a result of a fall. On July 25, 2022, a Utilization Review (UR) signed by Dr. Pitino issued, denying a request for authorization from [applicant's primary treating physician]. Applicant's counsel attempted to set the deposition of Dr. Pitino and initially contended that they did not know what items the doctor reviewed, if she understood the nature and extent of the applicant's injuries and if she signed the utilization review. A trial was held on these issues and it was found that the Applicant was not entitled to conduct the deposition as to the dispute regarding the review itself....Applicant subsequently filed a Petition for Penalties [on] May 12, 2023 asserting that Defendants were circumventing the Utilization Review process as they disputed that the Utilization Review was signed by a doctor. Applicant re-set the deposition of Dr. Pitino.... Applicant also set the deposition of the person most knowledgeable for Ericsson in regards to wage information.
The WCJ found good cause to allow the deposition of the PMK regarding earnings and earning capacity as relevant to the applicant's disability rate.
Favours Applicant prevailed
This supported allowing the deposition, which the WCAB affirmed, impacting the discovery process relevant to disability determination.
From the decision · page 4As to the issue if there is good cause for the Applicant to conduct the deposition of the person most knowledgeable (PMK) for Ericsson as to earnings and earnings capacity, it is found that there is good cause and that Applicant is entitled to conduct the deposition. The Applicant's earnings potential/capacity may be relevant to the issue of the applicant's disability rate.
There was no legal basis to depose Dr. Pitino to validate whether she performed the utilization review, as disputes over UR decisions must be resolved by IMR.
Favours Defendant prevailed
This led to rescinding the deposition permission for Dr. Pitino, limiting discovery on the UR issue.
From the decision · page 6Based on the foregoing, we conclude that there was no legal basis for applicant to depose Dr. Pitino to validate whether she performed the UR. We will therefore grant reconsideration on this issue and rescind the portion of the F&A finding that good cause existed to allow applicant to depose Dr. Pitino on this topic.
Defendant failed to demonstrate substantial prejudice or irreparable harm from allowing the depositions.
Favours Applicant prevailed
This justified denying the extraordinary remedy of removal and allowing the depositions to proceed as ordered.
From the decision · page 5We again emphasize that removal is an extraordinary remedy that will only be granted if the petitioning party shows that substantial prejudice and irreparable harm will result if removal is not granted. (Cortez, supra, 136 Cal.App.4th 596; Cal. Code Regs., tit. 8, § 10955.) Here, we conclude that defendant failed to demonstrate that substantial prejudice or irreparable harm would result if applicant deposes the PMK at Ericsson regarding applicant's earnings and earning capacity. Therefore, we will not exercise our discretion to grant defendant the extraordinary remedy of removal on this issue.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Denied authorization request in Utilization Review dated July 25, 2022.
The deposition was sought to validate whether Dr. Pitino performed the UR, but the WCAB found no legal basis to allow this deposition.
From the decision · page 2The WCJ's Report provides the following relevant factual background: The Applicant sustained an admitted injury on April 19, 2019 as a result of a fall. On July 25, 2022, a Utilization Review (UR) signed by Dr. Pitino issued, denying a request for authorization from [applicant's primary treating physician]. Applicant's counsel attempted to set the deposition of Dr. Pitino and initially contended that they did not know what items the doctor reviewed, if she understood the nature and extent of the applicant's injuries and if she signed the utilization review. A trial was held on these issues and it was found that the Applicant was not entitled to conduct the deposition as to the dispute regarding the review itself....Applicant subsequently filed a Petition for Penalties [on] May 12, 2023 asserting that Defendants were circumventing the Utilization Review process as they disputed that the Utilization Review was signed by a doctor. Applicant re-set the deposition of Dr. Pitino.... Applicant also set the deposition of the person most knowledgeable for Ericsson in regards to wage information.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 4610, 4610.5, 4610.6
Disputes over utilization review decisions must be resolved by independent medical review (IMR) under Labor Code sections 4610, 4610.5, and 4610.6.
The deposition of Dr. Pitino to validate the UR was barred because the dispute must be resolved by IMR.
From the decision · page 5In reviewing defendant's claim, we must first analyze applicant's stated objective in requesting the deposition. If applicant sought to depose Dr. Pitino to resolve a dispute regarding her UR decision6 to deny requested treatment based upon medical necessity, the deposition would be barred outright. Section 4610 provides that, with the exception of timeliness, where there is a dispute regarding a UR decision, the dispute shall be resolved only by independent medical review (IMR), pursuant to sections 4610.5 and 4610.6. (Lab. Code, § 4610(i); 4610.5; 4610.6; Aguilar v. Workers' Comp. Appeals Bd. (2005) 70 Cal.Comp.Cases 885 (writ den.); Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1307 (Appeals Board en banc) (writ den.) (Dubon II) ["There is no question that sections 4610 and 4610.5 provide that disputes over UR decisions shall be resolved by IMR."].)
Labor Code section 4659(c)
Labor Code section 4659(c) governs annual increases in permanent disability payments based on state average weekly wage.
Defendant argued that earnings capacity is irrelevant under section 4659(c), but the WCJ found earning capacity relevant to disability rate.
From the decision · page 4As to the issue if there is good cause for the Applicant to conduct the deposition of the person most knowledgeable (PMK) for Ericsson as to earnings and earnings capacity, it is found that there is good cause and that Applicant is entitled to conduct the deposition. The Applicant's earnings potential/capacity may be relevant to the issue of the applicant's disability rate.
Labor Code section 4453(c)(4)
Labor Code section 4453(c)(4) allows use of earning capacity to calculate average weekly wage if other methods cannot be fairly applied.
The deposition of the PMK was relevant because section 4453(c)(4) was at issue for calculating average weekly wage.
From the decision · page 4that applicant raised the application of section 4453(c)(4) as an issue for adjudication. (Minutes of Hearing (MOH), August 22, 2023, p. 2.) Section 4453(c)(4)5 permits the use of earning capacity
What proof carried it
The evidence the panel weighed, by kind.
Applicant's counsel initially contended lack of knowledge about what items Dr. Pitino reviewed and whether she signed the utilization review.
From the decision · page 2The WCJ's Report provides the following relevant factual background: The Applicant sustained an admitted injury on April 19, 2019 as a result of a fall. On July 25, 2022, a Utilization Review (UR) signed by Dr. Pitino issued, denying a request for authorization from [applicant's primary treating physician]. Applicant's counsel attempted to set the deposition of Dr. Pitino and initially contended that they did not know what items the doctor reviewed, if she understood the nature and extent of the applicant's injuries and if she signed the utilization review. A trial was held on these issues and it was found that the Applicant was not entitled to conduct the deposition as to the dispute regarding the review itself....Applicant subsequently filed a Petition for Penalties [on] May 12, 2023 asserting that Defendants were circumventing the Utilization Review process as they disputed that the Utilization Review was signed by a doctor. Applicant re-set the deposition of Dr. Pitino.... Applicant also set the deposition of the person most knowledgeable for Ericsson in regards to wage information.
Defendant failed to demonstrate substantial prejudice or irreparable harm from depositions.
From the decision · page 5We again emphasize that removal is an extraordinary remedy that will only be granted if the petitioning party shows that substantial prejudice and irreparable harm will result if removal is not granted. (Cortez, supra, 136 Cal.App.4th 596; Cal. Code Regs., tit. 8, § 10955.) Here, we conclude that defendant failed to demonstrate that substantial prejudice or irreparable harm would result if applicant deposes the PMK at Ericsson regarding applicant's earnings and earning capacity. Therefore, we will not exercise our discretion to grant defendant the extraordinary remedy of removal on this issue.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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