What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration denied by the Workers' Compensation Appeals Board panel
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 court found that the utilization review response to Dr. Abitbol's 9/3/2021 RFA was untimely and that the pre-surgical consult was reasonable and necessary to cure or relieve the effects of the injury.
From the decision · page 5Having found the UR response to Dr. Abitbol's 9/3/2021 RFA untimely, the court relied upon substantial medical evidence, and determined a pre-surgical consult to be reasonable and necessary to cure or relieve from the effects of applicant's injury. There was no preponderating evidence submitted by defendant, suggesting to the court that a pre-surgical consult was either unnecessary or unreasonable.
The court found that the pre-surgical consult prior to surgical introduction of an Intrathecal Pump is reasonably required to cure or relieve the injured worker from the effects of his injury. The court also found that the defendant is obligated to conduct utilization review for the 9/3/2021 Request For Authorization of Dr. Abitbol, even though a prior RFA for the same treatment by Dr. Smith was denied, because Dr. Abitbol and Dr. Smith are not in the same practice group as required by Labor Code section 4610(k).
From the decision · page 5Having found the UR response to Dr. Abitbol's 9/3/2021 RFA untimely, the court relied upon substantial medical evidence, and determined a pre-surgical consult to be reasonable and necessary to cure or relieve from the effects of applicant's injury. There was no preponderating evidence submitted by defendant, suggesting to the court that a pre-surgical consult was either unnecessary or unreasonable.
The court found that the report of Dr. Abitbol was not substantial medical evidence on the issue of the reasonableness and necessity of Zolgensma. The applicant failed to sustain the burden of proof that Zolgensma is reasonably required to cure or relieve from the effects of his injury.
From the decision · page 15(Title 8, California Code of Regulations, section 9785 (f)(8).) Dr. Abitbol seems to substitute his "any chance" of helping standard in place of "reasonable medical probability" in support of his request for Zolgensma. For each and all of the reasons noted, the report of Dr. Abitbol is not substantial medical evidence on the issue of the reasonableness and necessity of Zolgensma. The court finds that applicant has failed to sustain his burden of proof that Zolgensma is reasonably required to cure or relieve from the effects of his injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Abitbol and Dr. Smith are not physicians within the same practice group.
Favours Applicant prevailed
This fact means that the 12-month moratorium on utilization review decisions under Labor Code section 4610(k) does not apply, so the defendant must conduct utilization review for Dr. Abitbol's RFA.
From the decision · page 6Petitioner "...acknowledges Drs. Abitbol and Smith are not within the same practice. (Petition For Reconsideration 11/29/2021, page 5:19-20.) The WCJ concluded there to have been no evidence before the court that Dr. Abitbol and Dr. Smith are physicians within the same practice group sufficient to trigger a 12-month moratorium on submission of the same request.
The utilization review response to Dr. Abitbol's 9/3/2021 RFA was untimely.
Favours Applicant prevailed
This fact supports the finding that the pre-surgical consult was reasonable and necessary to cure or relieve the effects of the injury.
From the decision · page 5Having found the UR response to Dr. Abitbol's 9/3/2021 RFA untimely, the court relied upon substantial medical evidence, and determined a pre-surgical consult to be reasonable and necessary to cure or relieve from the effects of applicant's injury. There was no preponderating evidence submitted by defendant, suggesting to the court that a pre-surgical consult was either unnecessary or unreasonable.
Applicant failed to sustain the burden of proof that Zolgensma is reasonably required to cure or relieve from the effects of his injury.
Favours Defendant prevailed
This fact supports the denial of authorization for Zolgensma medication.
From the decision · page 15(Title 8, California Code of Regulations, section 9785 (f)(8).) Dr. Abitbol seems to substitute his "any chance" of helping standard in place of "reasonable medical probability" in support of his request for Zolgensma. For each and all of the reasons noted, the report of Dr. Abitbol is not substantial medical evidence on the issue of the reasonableness and necessity of Zolgensma. The court finds that applicant has failed to sustain his burden of proof that Zolgensma is reasonably required to cure or relieve from the effects of his injury.
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.
Opined that the pre-surgical consultation for the Intrathecal Pump is necessary due to the patient's medical conditions including diabetes, obstructive sleep apnea, and use of blood thinners, and that no physician will perform surgery without this consultation.
The court relied on Dr. Abitbol's opinion to find the pre-surgical consult reasonable and necessary.
From the decision · page 5As relates to the reasonableness and necessity of an Intrathecal Pump Pre-Surgical Consultation, Dr. Abitbol opined: "...On January 4, 2021, Dr. Arash Yaghjjoobian, M.D., of Medinsights, the UR services company certified an Intrathecal Pump trial, as an `end-stage treatment alternative' due to the failure of at least 6 months of less invasive, ineffective and failed pain management methods. Despite this certification, the carrier has refused to authorize a "Pre-Op" Consultation, which has resulted in the applicant' inability to obtain effective pain relief. Pre-Op is the time before surgery, where a surgeon will meet with his or her patient; perhaps request surgical clearance from a mental health care provider, or a cardiologist, if indicated to ensure any underlying health conditions the patient may have will not cause problems during surgery. This Pre-Op consultation is necessary so that your surgical team can gather as much information as they can to provide the best surgical results.
Recommended Zolgensma medication but the court found this recommendation was not supported by substantial medical evidence.
The court rejected Dr. Abitbol's recommendation for Zolgensma as not substantial medical evidence.
From the decision · page 15(Title 8, California Code of Regulations, section 9785 (f)(8).) Dr. Abitbol seems to substitute his "any chance" of helping standard in place of "reasonable medical probability" in support of his request for Zolgensma. For each and all of the reasons noted, the report of Dr. Abitbol is not substantial medical evidence on the issue of the reasonableness and necessity of Zolgensma. The court finds that applicant has failed to sustain his burden of proof that Zolgensma is reasonably required to cure or relieve from the effects of his injury.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code section 4610(k)
California Labor Code section 4610(k) limits the 12-month period of effectiveness of a utilization review decision to the same physician or another physician within the same practice group for the same treatment.
The court applied this statute to determine that the defendant must conduct utilization review for the 9/3/2021 RFA by Dr. Abitbol because he is not in the same practice group as Dr. Smith.
From the decision · page 2Nevertheless, section 4610(k) limits the 12-month period of effectiveness of a UR decision only "with regard to a further recommendation by the same physician, or another physician within the requesting physician's practice group..." (Lab. Code, § 4610(k) emphasis added.) Moreover, where statutory language in unambiguous, we are bound by the plain meaning of the statute. (See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 888.)
California Labor Code sections 4610(i)(1) and 4610(i)(3)
Utilization review decisions must be made within 5 business days, or within 72 hours if the employee's condition is an imminent and serious threat to health.
The court applied these statutes to find that the utilization review response to Dr. Abitbol's RFA was untimely and that expedited review was warranted due to the serious health threat.
From the decision · page 11A request for prospective or concurrent utilization review is to be made within 5 normal business days from receipt of a request for authorization. (California Labor Code Section 4610 (i)(1)). However, if "...the employee's condition is one in which the employee faces an imminent and serious threat to the employee's health, including, but not limited to, the potential loss of life, limb, or other bodily function, or the normal timeframe for the decision making process... would be detrimental to the employee's life or health or could jeopardize the employee's ability to regain maximum function, decisions to approved, modify, or deny requests by physicians prior to, or concurrent with, the provision of medical treatment services to employees shall be made in a timely fashion that is appropriate for the nature of the employee's condition, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination..." (California Labor Code Section 4610 ((i)(3).)
California Labor Code section 5705
The burden of proof rests with the party holding the affirmative of the issue, and must be met by a preponderance of the evidence.
The court applied this standard to determine that the applicant failed to meet the burden of proof for the reasonableness and necessity of Zolgensma medication.
From the decision · page 12The burden of proof rests with the party holding the affirmative of the issue. (California Labor Code section 5705). In that regard, applicant bears the burden of proof. "...The Legislature amended section 3202.5 to underscore that all parties, including injured workers, must meet the evidentiary burden of proof on all issues by a preponderance of the evidence. Accordingly, notwithstanding
What proof carried it
The evidence the panel weighed, by kind.
The orthopedic AME found applicant is wheelchair dependent because he is unable to place any weight whatsoever primarily on the left lower extremity due to persistent pain and weakness.
From the decision · page 4In the Petition For Reconsideration, defendant describes this injured worker as having "...sustained crush injuries to his pelvis, an abdominal hernia, an occlusion of external iliac artery, and an anterior and posterior compression-type injury to the left pubic rami...hospitalized for 10 days and underwent open reduction and internal fixation of the displaced left pelvic fracture and bypass of the femoral artery due to the occlusion..." (Petition For Reconsideration 11/29/2021, page 2:22-27.) Petitioner notes the "...orthopedic AME found applicant is wheelchair dependent because `he is unable to place any weight whatsoever primarily on the left lower extremity due to persistent pain and weakness'"..." (Petition For Reconsideration 11/29/2021, page 4:1-3.)
The utilization review response to Dr. Abitbol's 9/3/2021 RFA was untimely.
From the decision · page 5Having found the UR response to Dr. Abitbol's 9/3/2021 RFA untimely, the court relied upon substantial medical evidence, and determined a pre-surgical consult to be reasonable and necessary to cure or relieve from the effects of applicant's injury. There was no preponderating evidence submitted by defendant, suggesting to the court that a pre-surgical consult was either unnecessary or unreasonable.
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About this page
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