ADJ2754339 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by defendant CIGA challenging Findings and Order of 14 December 2022; no answer received; WCAB denies reconsideration adopting WCJ report

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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.

Medical treatment / UR / IMRApplicant prevailedpsyche

The lien claimant's reports were more persuasive and the treatment was found reasonable and necessary; the defendant's argument that the reports were not incorporated into the primary treating physician's report was rejected as no exclusionary rule applies; prior findings have preclusive effect in the lien trial; the second medical-legal report was requested by applicant's attorney.

From the decision · page 3Defendant, CIGA, by and through their attorneys of record, has filed a timely Petition for Reconsideration challenging the Findings and Order of 14 December 2022. In it Petitioner argues that the undersigned erred in finding (in part) for the lien claimant, DR KONSTAT. Specifically, they argue that the lien should be denied because the conclusions of DR. KONSTAT were not incorporated into the report of the primary treating physician. They also argue that the lien claimant failed to establish that the psychological and psychiatric treatment was shown to be reasonable and necessary. They also argue that the findings of reasonableness by the prior judge in the case-in- chief do not have a preclusive effect. Finally, they argue that no party requested a medical-legal report from her.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Lien claimant requested authorization for treatment but defendant did not provide reports to utilization review

Favours Applicant prevailed

Supports reasonableness and necessity of treatment and lien claim

From the decision · page 4III DISCUSSION The most important procedural fact in this case is that this is a lien claim filed by a treating physician who provided self-procured treatment after the defendant failed to provide treatment. As such, it does not matter if the defendant submitted the requests for authorization to utilization review (UR.) Lien claimant did request authorization (See Exhibit 12) but there is no evidence that the defendant provided the reports that provided the treatment plan to UR. The defendants in the case-in-chief did submit rebuttal reports from Dr. Nathan. However, these reports were much more concerned with diagnosis, permanent disability and apportionment and seemingly little concerned with the treatment. See Exhibits F and G. Comparing the two, Dr. Konstat makes a better case for the treatment she did provide. Consequently, even if the Findings of Judge Aslanian did not have a preclusive effect, it is easy to see that the treatment was reasonable and necessary. Defendant counters that the reports of Dr.

Prior findings by Judge Aslanian that psychological treatment was reasonable and necessary have preclusive effect in lien trial

Favours Applicant prevailed

Prevents re-litigation and supports lien claimant's position

From the decision · page 4Konstat were not admissible in evidence based on the fact that they were not incorporated into the reports of the primary treating physician. However, close review of Labor Code section 4620 and Rules 9785 (e)(3) and (4) does not show that there is any exclusionary rule that would make the secondary treater's report inadmissible. Defendant also argues that the Findings of Judge Aslanian do not have a preclusive effect. This argument is unpersuasive. This is a lien trial so that the lien claimant is in privity with the interests of the applicant. The defendant is the same party. Consequently, the issue is binding on both the parties in the lien trial.

Applicant's attorney requested the second medical-legal report of Dr. Konstat

Favours Applicant prevailed

Validates the lien claim for that report

From the decision · page 5Finally, defendant claims that the second medical - legal report of Dr. Konstat was not requested by any party. This is simply inaccurate. Exhibit 20 shows that applicant's attorney did request this report, even though Dr. Konstat took her time in responding to the request.

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.

secondary_treaterRelied upon · psychological and psychiatric treatment

Supports reasonableness and necessity of psychological treatment; reports more persuasive than defendant's expert Dr. Nathan.

Reports were more persuasive and treatment was reasonable and necessary; no exclusionary rule for secondary treater's reports.

From the decision · page 4III DISCUSSION The most important procedural fact in this case is that this is a lien claim filed by a treating physician who provided self-procured treatment after the defendant failed to provide treatment. As such, it does not matter if the defendant submitted the requests for authorization to utilization review (UR.) Lien claimant did request authorization (See Exhibit 12) but there is no evidence that the defendant provided the reports that provided the treatment plan to UR. The defendants in the case-in-chief did submit rebuttal reports from Dr. Nathan. However, these reports were much more concerned with diagnosis, permanent disability and apportionment and seemingly little concerned with the treatment. See Exhibits F and G. Comparing the two, Dr. Konstat makes a better case for the treatment she did provide. Consequently, even if the Findings of Judge Aslanian did not have a preclusive effect, it is easy to see that the treatment was reasonable and necessary. Defendant counters that the reports of Dr.

secondary_treaterRejected · psychological and psychiatric treatment

Found psychological injury produced 5% impairment, secondary to orthopedic condition, with 10% apportionment to personality functioning; reports focused on diagnosis, permanent disability and apportionment rather than treatment.

Reports were less persuasive and focused on diagnosis and apportionment rather than treatment.

From the decision · page 4III DISCUSSION The most important procedural fact in this case is that this is a lien claim filed by a treating physician who provided self-procured treatment after the defendant failed to provide treatment. As such, it does not matter if the defendant submitted the requests for authorization to utilization review (UR.) Lien claimant did request authorization (See Exhibit 12) but there is no evidence that the defendant provided the reports that provided the treatment plan to UR. The defendants in the case-in-chief did submit rebuttal reports from Dr. Nathan. However, these reports were much more concerned with diagnosis, permanent disability and apportionment and seemingly little concerned with the treatment. See Exhibits F and G. Comparing the two, Dr. Konstat makes a better case for the treatment she did provide. Consequently, even if the Findings of Judge Aslanian did not have a preclusive effect, it is easy to see that the treatment was reasonable and necessary. Defendant counters that the reports of Dr.

ADJ2754339 · February 22, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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