California Labor Code § 4604.5

Determinative passage · p.3(1) Notwithstanding the medical treatment utilization schedule, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury.

Limits chiropractic visits to 24 per industrial injury unless additional visits are authorized or exceptions apply.

Determinative passage · p.10Here, there is no evidence that a medical professional evaluated whether the RFA submitted on November 27, 2024 established the need for expedited review, or that any such determination was communicated to the prescribing physician within 72 hours of defendant's receipt of the RFA. As a result, defendant's December 11, 2024 Utilization Review decision was untimely, and the WCAB is vested with jurisdiction over the underlying medical treatment dispute. (Dubon v. World Restoration (2014) 79 Cal.Comp.Cases 1298 [2014 Cal. Wrk. Comp. LEXIS 131].) Accordingly, we will grant reconsideration, rescind the F&O, substitute new findings of fact that defendant's December 11, 2024 UR determination was untimely, and return this matter to the WCJ for determination of whether applicant has met the burden of establishing that the requested medical treatment is medically necessary under applicable medical treatment utilization schedule and recommended guidelines. (Lab. Code, § 4604.5; 5307.27 et seq.)

The Board applied these statutes to return the matter to the WCJ for determination of medical necessity of the requested treatment.

Determinative passage · p.8The 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 whatever an employer does (or does not do), an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600, subd. (b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (§ 4604.5). (Sandhagen, supra, at p. 990.)

Applied to assess medical necessity under MTUS guidelines and burden of proof

Determinative passage · p.6Labor Code § 4604.5 provides that the American College of Occupational and Environmental Medicine's Occupational Medicine Practice (ACOEM) Guidelines or any Medical Treatment Utilization Schedule (MTUS) adopted by the Administrative Director are presumed to be correct on the issue of reasonable of the medical treatment. The same section also states that this presumption is rebuttable by scientific medical evidence establishing that a variance from the ACOEM Guidelines or MTUS is reasonably required. Therefore, in order to meet this burden of proof, a lien claimant is required to show that the disputed medical treatment was reasonably necessary to cure or relieve from the effects of the injury and that this treatment was consistent with ACOEM Guidelines or the MTUS. [Frontline Medical Associates, Inc. v. Workers' Comp. Appeals Bd. (Lopez) (2015) 80 Cal. Comp. Cases 380 (writ denied)] This requirement applies retroactively to all open cases, regardless of the date of injury or the date of medical treatment. [Sierra Pacific Industries v. Workers' Comp. Appeals Bd. (Chatham) (2006) 71 Cal. Comp. Cases 714.] In this case, notwithstanding the articulated criticisms of the Defendant, based on the medical report of Dr. Schames dated May 14, 2021, on pages 12 to 13, he wrote as follows regarding medical necessity:

The WCJ found Dr. Schames's treatment reasonable and consistent with the law and guidelines, which the WCAB adopted and incorporated in denying reconsideration.

Determinative passage · p.4Labor Code § 4604.5 provides that the American College of Occupational and Environmental Medicine's Occupational Medicine Practice (ACOEM) Guidelines or any Medical Treatment Utilization Schedule (MTUS) adopted by the Administrative Director are presumed to be correct on the issue of reasonable of the medical treatment. The same section also states that this presumption may be controverted by scientific medical evidence establishing that a variance from the ACOEM Guidelines or MTUS is reasonably required. Therefore, in order to meet this burden of proof, a lien claimant is required to show that the disputed medical treatment was reasonably necessary to cure or relieve from the effects of the injury and that this treatment was consistent with ACOEM Guidelines or the MTUS. [Frontline Medical Associates, Inc. v. Workers' Comp. Appeals Bd. (Lopez) (2015) 80 Cal. Comp. Cases 380 (writ denied)] This requirement applies retroactively to all open cases, regardless of the date of injury or the date of medical treatment. [Sierra Pacific Industries v. Workers' Comp. Appeals Bd. (Chatham) (2006) 71 Cal. Comp. Cases 714.]

Lien claimant must show disputed medical treatment was reasonably necessary and consistent with ACOEM Guidelines or MTUS.

Determinative passage · p.2In Dubon v. World Restoration, Inc., (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc) (Dubon II), we reiterated that if a UR denial is untimely, the determination of medical necessity of the disputed medical treatment may be made by the Workers' Compensation Appeals Board (WCAB) based on substantial medical evidence consistent with section 4604.5. (See also State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 240- 241, 242 (73 Cal.Comp.Cases 981] [injured worker bears the burden of proof to show that medical treatment is reasonably required].) As noted by the WCJ in the Report, defendant does not dispute the WCAB's jurisdiction to determine the medical necessity of the October 28, 2021 Request for Authorization (RFA) issued by primary treating physician David Patterson, M.D.

Applicant bears the burden to prove medical necessity of treatment by substantial medical evidence.

Determinative passage · p.6provided was reasonable and necessary to cure applicant from the effects of her industrial injury. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 237- 238 [73 Cal.Comp.Cases 981]; Tito Torres v. AJC Sandblasing (2012) 77 Cal.Comp.Cases 1113, 1121 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en Banc).) To determine whether lien claimants have satisfied their burden of proof, the parties, first, need to ascertain whether there were MTUS guidelines, which covered their medical services at the time their services were provided.

The WCAB applied these standards to determine that the evidence did not establish the reasonableness and necessity of the medical treatment liens, requiring remand for further proceedings.

Determinative passage · p.322 (4) Although the ACOEM guidelines are "presumptively correct on the

The Board held that ACOEM guidelines do not have presumptive effect on causation issues.