ADJ9712319 · June 20, 2025

The RFA was procedurally complete and triggered UR obligations. Defendant's failure to issue a timely denial with mandatory conditional language rendered the UR untimely and invalid.

From the decision · page 4Petitioner, Defendant-Elk Grove Unified School District, petitions for reconsideration of the Findings of Fact and Opinion on Decision issued March 28, 2025, arguing that the undersigned Workers' Compensation Judge (WCJ) misapplied the law in determining that utilization review (UR) was untimely. Specifically, the defendant contends that the Request for Authorization (RFA) was incomplete and returned in accordance with 8 CCR§ 9792.9.l(c)(2)(A) and that no further obligation existed absent a corrected RFA.

The Request for Authorization (RFA) signed by Dr. Bernhardt was procedurally complete and triggered utilization review obligations.

Favours Applicant prevailed

This fact established that the defendant's failure to issue a timely denial with mandatory conditional language rendered the utilization review untimely and invalid, leading to denial of the petition for reconsideration.

From the decision · page 7Based on the current undisputed facts, the RFA was procedurally complete and triggered UR obligations. Specifically, the RFA signed by Dr. Bernhardt was not "incomplete" within the meaning of§ 9792.9.l(c)(2)(A). It was signed by a physician, identified the employee and the recommended treatment, and was accompanied by a narrative referencing failed conservative modalities. Therefore, UR obligations were triggered on September 11, 2018, when defendant received the RFA. Defendant's request for additional information invoked§ 9792.9.l(f), not§ 9792.9.l(c)(2)(A). The defendant timely responded within five business days by requesting additional information. This conduct invoked 8 CCR§ 9792.9.l(f)(l)(A), which allows such a request where the information reasonably necessary to make a determination is missing. Once that request was made, § 9792.9.1 (f)(3)(A) applied: "If the information reasonably necessary... is not received within 14 days... the reviewer shall deny the request with the stated condition that the request will be reconsidered upon receipt." No such conditional denial was issued. Thus, UR was procedurally defective and untimely.

Signed Request for Authorization for H-Wave device and supplies with narrative referencing failed conservative modalities, supporting procedural completeness of RFA.

The RFA signed by Dr. Bernhardt was not incomplete and triggered UR obligations.

From the decision · page 5Rosenberg further ordered a one-month trial of a H-Wave device citing the Official Disability Guidelines (ODG) and the patient's previous use & failure of Physical Therapy, medication and a TENS unit. The one-month trial will be utilized to monitor and measure effectiveness of H-Wave home use and potential for continued use (Joint Exhibit 102). On July 26, 2018, Electronic Waveform Lab delivered an H-Wave unit to applicant for a 20-day trial. The report of same date indicates that the Applicant had failed the following conservative treatment options: Medications (Including Norco and Ibuprofen); Physical Therapy (12+ visits); TENS (Clinical use in 2010 & 2017) and indicates TENS did not provide adequate relief (Joint Exhibit 104). A Patient Outcome Report of August 15, 2018 notes that after 20-days of use, the H-Wave device had increased applicant's functionality with walking and other ADLs (Joint Exhibit 105). On August 27,2018, Dr. Brian Bernhardt, from 1PM, signed a Request for Authorization for a H Wave Device, and supplies (electrodes and conductive gel) which included a frequency and duration provision for 10 months. The Request for Authorization was accompanied by a I-page report (PR-2 narrative equivalent) signed by Dr. Bernhardt (Joint Exhibit 106 & 107).

Reported increased activity levels and use of H-Wave device; supported the medical necessity of treatment.

Supports the medical necessity and use of H-Wave device as part of treatment.

From the decision · page 5On August 28, 2018, Dr. Rosenberg's Physician Assistant (PA) issued a PR-2 stating that applicant's pain levels decreased since the last visit. He noted applicant works full-time. He noted usage of the H-Wave device at 1.5 hours per day and that applicant reported decreased swelling in the Applicant's ankle and allows the Applicant to sleep 6-7 hours per night. It is also reported that the Applicant stopped using Voltaren gel (Joint Exhibit 108). On September 11, 2018, 1PM faxed and defendant received the August 27, 2018 Request for Authorization which was signed by Dr. Bernhardt. On September 11, 2018, Dr. Bernhardt/IPM's Request for Authorization and PR-2 were faxed to and received by Defendant. The PR-2 indicates that the patient utilized home H-Wave at no cost for evaluation purposes from 7/26/18 to 8/15/18. Patient has reported the ability to perform more activity and greater overall function due to the use of the H-Wave device.

Issued PR-4 report inclusive of treatment history and recommendations for future medical treatment.

Provided treatment history and recommendations relevant to the claim.

From the decision · page 52 The stipulated facts are contained in finding of fact 1-23 of the F&A and are as follows: On September 25, 2013, applicant sustained an admitted right ankle injury. Defendant did not have a Medical Provider Network (MPN), and applicant designated her primary treating physician. On March 5, 2018, applicant's primary treating physician, Dr. Masoud Ghalambor, issued a PR-4 inclusive of treatment history and recommendations for future medical treatment (Joint Exhibit 101). In March of 2018, Applicant changed primary treating physicians to Dr. Jacob Rosenberg. Dr. Rosenberg works at 1PM Medical Group (1PM). On May 21, 2018, the claim was settled by Stipulations with Request for Award at 13% to the right ankle. Dr. Rosenberg requested and defendant authorized physical therapy. Applicant received 6 sessions of physical therapy at Crux Rehabilitation from March 21,2018, to April 5, 2018 (Joint Exhibit 114 to 121 ). Dr. Rosenberg issued additional reports on May 3, 2018 and June 6, 2018 (Joint Exhibits 122 and 123). On July 18, 2018, Dr. Rosenberg reported that "A thorough history of the patient's previous treatments indicate a failure of a variety of initially recommended conservative treatments including physical therapy or home exercise, medications and trial of a TENS unit during physical therapy visits for home use." Dr.

California Code of Regulations

8 CCR 9792.9.1(c)(2)(A) and 8 CCR 9792.9.1(f)

Defines procedural requirements for Requests for Authorization and utilization review timelines.

From the decision · page 4Petitioner, Defendant-Elk Grove Unified School District, petitions for reconsideration of the Findings of Fact and Opinion on Decision issued March 28, 2025, arguing that the undersigned Workers' Compensation Judge (WCJ) misapplied the law in determining that utilization review (UR) was untimely. Specifically, the defendant contends that the Request for Authorization (RFA) was incomplete and returned in accordance with 8 CCR§ 9792.9.l(c)(2)(A) and that no further obligation existed absent a corrected RFA.

Labor Code section 5909

Labor Code section 5909(a) and (b)

Requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission and to provide notice to parties.

From the decision · page 1Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Labor Code sections 4610.5-4610.6

Labor Code sections 4610.5-4610.6

IMR process requires a valid and substantively reviewed UR decision; defective UR denials cannot trigger IMR.

From the decision · page 8In its final argument, Petitioner contends that it "could not logically be the legislative intent for IMR to be utilized for non-substantive denials." The petitioner incorrectly asserts that any UR determination-regardless of its compliance with statutory and regulatory requirements-must proceed to IMR. This interpretation is legally flawed. The statutory IMR process (Lab. Code§ 4610.5-4610.6) is predicated on a valid and substantively reviewed UR decision. A UR determination that fails to meet the legal standards for timeliness, medical review, or adequacy is not a valid decision and therefore cannot trigger IMR. The Legislature could not have intended that defective or procedurally invalid UR denials serve as a basis for IMR. Doing so would improperly shift the burden to the injured worker and deprive the WCAB of its fundamental adjudicatory role.

Defendant's failure to issue a timely denial with mandatory conditional language regarding reconsideration upon receipt of additional information.

From the decision · page 727. Defendant failed to issue a denial of the RFA with the mandatory language regarding reconsideration upon receipt of additional information.