ADJ10267198 · September 24, 2021

The WCJ found the utilization review of Dr. Nick's February 14, 2020 RFA was untimely, which was not disputed by defendant, making it a final order and a threshold jurisdictional issue.

From the decision · page 2FACTUAL BACKGROUND Applicant claims he sustained injury to various body parts during the cumulative period from January 11, 2015 to January 11, 2016, while employed by the defendant as a warehouse worker. Saeed Nick, M.D., is applicant's primary treating physician. The parties proceeded to Expedited Trial on June 16, 2021. According to the Minutes of Hearing, the stipulations, as relevant herein, were that applicant sustained injury to various body parts during the cumulative period from January 11, 2015 to January 11, 2016 while employed by the defendant as a warehouse worker, and Saeed Nick, M.D., is applicant's primary treating physician. The issues, as relevant herein, were attorney fees, the need for 24-hour home healthcare services, timeliness of utilization review, and applicant's request for a home healthcare services assessment. Applicant claims defendant did not timely issue utilization review of Dr. Nick's February 14, 2020 RFA for 24-hour home healthcare services.

The February 14, 2020 RFA was not admitted into evidence at the Expedited Trial.

Favours neutral

Without the RFA in evidence, the WCJ could not properly evaluate the timeliness or medical necessity, leading to rescission and remand.

From the decision · page 5The WCJ has the duty to develop the record and the authority to order additional medical evidence as required so that the decision is based on substantial evidence.3 Here, the February 14, 2020 RFA was not admitted into evidence. While we do not disagree that utilization review was likely untimely, without the RFA admitted into evidence at the Expedited Trial, we cannot make that determination regarding timeliness.

The utilization review of Dr. Nick's February 14, 2020 RFA was untimely and not disputed by defendant.

Favours Applicant prevailed

This finding made the utilization review timeliness a final order and a threshold jurisdictional issue favoring the applicant.

From the decision · page 3relieve the effects of the industrial injury. As stated supra, defendant filed an answer and did not dispute the WCJ's determination that the utilization review of the February 14, 2020 RFA was untimely. However, the defendant raises the issue of whether the requested treatment was reasonable and medically necessary to cure or relieve the effects of the industrial injury.

Dr. Nick issued a February 14, 2020 RFA for 24-hour home healthcare services and a walker with wheels; his medical reporting was found not to be substantial medical evidence by the WCJ.

The WCJ found Dr. Nick's medical reporting was not substantial medical evidence, which was a key issue in the reconsideration petition.

From the decision · page 2FACTUAL BACKGROUND Applicant claims he sustained injury to various body parts during the cumulative period from January 11, 2015 to January 11, 2016, while employed by the defendant as a warehouse worker. Saeed Nick, M.D., is applicant's primary treating physician. The parties proceeded to Expedited Trial on June 16, 2021. According to the Minutes of Hearing, the stipulations, as relevant herein, were that applicant sustained injury to various body parts during the cumulative period from January 11, 2015 to January 11, 2016 while employed by the defendant as a warehouse worker, and Saeed Nick, M.D., is applicant's primary treating physician. The issues, as relevant herein, were attorney fees, the need for 24-hour home healthcare services, timeliness of utilization review, and applicant's request for a home healthcare services assessment. Applicant claims defendant did not timely issue utilization review of Dr. Nick's February 14, 2020 RFA for 24-hour home healthcare services.

Labor Code sections 5900(a), 5902, 5903

A petition for reconsideration may properly be taken only from a 'final' order, decision, or award.

The WCJ's finding on timeliness of utilization review is a final order as it is a threshold jurisdictional issue.

From the decision · page 3I. A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) 1 A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final' "]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p.

Labor Code section 4610(k)

Utilization review decision to modify or deny a treatment recommendation remains effective for 12 months from the date of the decision.

Supports that utilization review timeliness is a final order if decided at Expedited Trial.

From the decision · page 345 ["[t]he term [`final'] does not include intermediate procedural orders"].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues. Here, the defendant's answer does not challenge the WCJ's finding regarding timeliness of the utilization review of the February 14, 2020 RFA; utilization review is a jurisdictional issue and therefore is a final order if decided at the Expedited Trial. Additionally, pursuant to Labor Code section 4610(k), because "[a] utilization review decision to modify or deny a treatment recommendation shall remain effective for 12 months from the date of the decision...", an order by the WCJ regarding utilization review in this context would also be considered final.

Labor Code section 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc)

WCJ must make and file findings upon all facts involved in the controversy and refer to evidence in the opinion on decision.

The WCJ's decision must be based on substantial evidence and clearly designate the evidence forming the basis of the decision.

From the decision · page 4II. The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313. An adequate and complete record is necessary to understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc)2 (Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp.

Defendant did not dispute the untimeliness of the utilization review of Dr. Nick's February 14, 2020 RFA

From the decision · page 3relieve the effects of the industrial injury. As stated supra, defendant filed an answer and did not dispute the WCJ's determination that the utilization review of the February 14, 2020 RFA was untimely. However, the defendant raises the issue of whether the requested treatment was reasonable and medically necessary to cure or relieve the effects of the industrial injury.