CASE NO.: _____________
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION _____
______________________________________
LIONS RAISINS, Permissibly Self Insured
Petitioner,
vs.
WORKERS' COMPENSATION APPEALS BOARD
and
ISMAEL MIRAMONTES,
Respondents,
______________________________________
WCAB Case No.: ADJ2777203
HONORABLE PRESIDING JUSTICE
______________________________________
PETITION FOR WRIT OF REVIEW
______________________________________
RICHARD M. JACOBSMEYER, ESQ.
SBN: 66300
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
475 – 14th Street, Suite 850
Oakland, CA 94612
TEL NO: (510) 645-7172
Attorney for Petitioner
I.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
California Rules of Court, Rule 8.208
Court of Appeal Case Caption:
LION RAISINS, Permissibly Self Insured
1stApp. District – Div ___
v.
WCAB, et al.
Name of Interested Entity or Person
Nature of Interest
Please check here if applicable
There are no interested entities or parties to list in this Certificate per California
Rules of Court 8.208(d).
_____________________________________
Date: February 19, 2015
Signature of Attorney or Unrepresented Party
Printed Name:
State Bar No.:
Address:
RICHARD M. JACOBSMEYER, ESQ.
66300
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
475 – 14th Street, Suite 850
Oakland, CA 94612
TEL NO: (510) 645-7172
Party Represented: Petitioner
Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes
Petition for Writ of Review
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II.
TABLE OF CONTENTS
I.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS……….… 1
II.
TABLE OF CONTENTS
III.
TABLE OF AUTHORITIES… …………………………………………..3
IV.
PETITION FOR WRIT OF REVIEW
V.
STATEMENT OF FACTS…………………..……………….……………9
VI.
ISSUES PRESENTED FOR REVIEW …………………………………14
VII.
POINTS AND AUTHORITIES
……………………………………….…….. 2
…………………..…………….. .5
……………………………………….15
a. THE W.C.A.B. LACKED AUTHORITY TO AWARD
MEDICAL
TREATMENT
INDEPENDENT
OF
A
UTILIZATION REVIEW DETERMINATION PURSUANT TO
LABOR CODE § 4610 IN THE ABSENCE OF DEFECT IN
THE UTILIZATION REVIEW DETERMINATION
b. THE DECISION OF THE WCJ IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE AND IS NOT IN COMPLIANCE
WITH THE MEDICAL UTILIZATION TREATMENT
SCHEDULES MANDATED PURSUANT TO LABOR CODE §
4604.5.
c. THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF
THAT DECISION ARE NOT CONSISTENT WITH THE
W.C.A.B.’S EN BANC DECISION IN DUBON (cited supra)
d. THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO
COMPLETE
DISCOVERY
BY
FINISHING
THE
DEPOSITION OF Dr. TRAN WAS AN ABUSE OF PROCESS.
VIII.
CONCLUSION ………………………………………………………… 24
IX.
VERIFICATION AND WORD COUNT ……………………………….26
X.
DECLARATION OF SERVICE
XI.
EXHIBIT LIST AND EXHIBITS ………………………………….…….29
……………………………………….27
(Filed as attachments)
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III.
CASES
TABLE OF AUTHORITIES
:
Roque Neri Hernandez v. Geneva Staffing, et al.
WCAB en banc 79 Cal Comp Cases 682
12
State Compensation Ins Fund v W.C.A.B. (Sandhagen)
44 Cal. 4th at 242
Dubon v World Restoration, Inc.,
79 Cal. Comp.Cases 1298
9, 12, 15, 16
3, 10, 13, 16, 17, 20
Ogden Entertainment Services v. WCAB
80 Cal. Comp.Cases 1
18, 19, 20
Chadbourn ed. 1974
19
CAL CODE OF REGS:
Administrative Director Regulation 9792.9.1(C)(2)
Administrative Director Regulation 9792.9.1
6
14
STATUTES:
Labor Code 4600
Labor Code 4604.5
Labor Code 5950
Labor Code 5703.8
Labor Code 4610
Labor Code 4062
Labor Code 4610.6
Labor Code 4610.5
Labor Code 4610(e)
Labor Code 4604.5
Labor Code 3202.5
Labor Code 4600(b)
2, 5, 11, 12
2, 10
3
5
9, 10, 11, 12, 13, 17
9, 11
12, 13, 17
13, 17
13
14
15
15
Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes
Petition for Writ of Review
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In The Court of Appeal
Of the State of California
First Appellate District, Division ___
LION RAISINS, Permissibly Self Insured
Petitioner,
vs.
WORKERS' COMPENSATION APPEALS BOARD
and
ISMAEL MIRAMONTES,
Respondents,
______________________________________
WCAB Case No.: ADJ2777203
TO THE HONORABLE PRESIDING JUSTICE AND THE HONORABLE
ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA, FISRT APPELLATE DISTRICT:
COMES NOW Defendants LION RAISINS, hereinafter Petitioner,
by and
through its attorneys of record, the Law Offices of Shaw, Jacobsmeyer, Crain and
Claffey, PC seeking review by this Court with its Petition For Writ of Review following
the Order denying Defendants’ Petition for Reconsideration of the Findings and Award in
this matter.
By verified Petition Petitioner alleges as follows:
1. Petitioner was and is at all times mentioned herein a Permissibly Self Insured
Employer authorized to conduct business within the State of California with a
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principal site of business in Selma, Ca and with operations at multiple
locations throughout the State of California.
2. Ismael Miramontes, hereinafter, Respondent, was employed in Selma,
California by Petitioner on May 30, 2006 when he sustained injury arising out
of and occurring in the course of that employment..
3. Ismael Miramontes filed a claim for workers’ compensation benefits with the
Workers’ Compensation Appeals Board (W.C.A.B.) and received an award of
Permanent Total (100%) Disability with an award of medical treatment to cure
or relieve from the effects of the injury.
4. As part of his entitlement to medical treatment, respondent has received
assistance at his home of home health aids
5. Petitioner herein has engaged the services of Acclamation Insurance
Management Services (AIMS) to administer workers’ compensation benefits
for its employees including the benefits for Respondent.
6. As part of its obligation to administer medical benefits in this workers'
compensation claim, AIMS has utilized the services of Allied Managed Care
Services to perform Utilization Review of requests for medical treatment
submitted by Respondent’s treating physician pursuant to Labor Code § 4610.
7. As part of its obligation to determine benefits to be provided appropriately
pursuant to Labor Code § 4600 as defined in Labor Code § 4604.5, a Request
for Authorization was submitted by Respondent’s treating physician, Dr. Tran,
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which was reviewed by Allied Managed Care and a timely determination as to
appropriate medical treatment was made and served on the parties.
8. The Workers’ Compensation Judge (WCJ) determined at an Expedited Hearing
that the UR determination was not valid and ordered medical treatment
contrary to the Utilization Review determination.
9. The W.C.A.B. denied Petitioner’s appeal of the WCJ’s award of medical
treatment issued contrary to the Utilization Review determination.
Petitioner seeks issuance of a Writ of Review on the following grounds:
1. The Findings of Fact and Award issued by the Judge Hurley and the
Order Denying Petitioner’s Petition for Reconsideration are not
supported by substantial evidence.
2. The Findings of Fact and Award issued by the W.C.A.B. and the Order
Denying Petitioner’s Petition for Reconsideration are unreasonable.
3. The W.C.A.B. in awarding Petitioner treatment contrary to the
Utilization Review determination acted in excess of its power under the
W.C.A.B.’s en banc decision in Dubon v World Restoration Inc, 79 Cal.
Comp. Cases 1298 (Dubon II)
4. Petitioner has no right to appeal from the Order Denying Petition for
Reconsiderat1on and has no plain, speed or adequate remedy other than
by this Writ of Review which is authorized pursuant to Labor Code §
5950.
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Petition for Writ of Review
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Wherefore, Petitioner prays that a Writ of Review issue from this Court to the W.C.A.B.
commanding that body to certify to the Court at a designated time and place, the record
of proceedings in this case so that the Court may inquire into the lawfulness of the
W.C.A.B.’s denial of Reconsideration and the Findings of Fact and Award of the
W.C.A.B. be reversed, the Award of benefits be annulled, vacated and set aside and such
other relief as the Court deems appropriate.
Executed on February 19, 2015 in Oakland, California.
Respectfully submitted,
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
__________________________________________
RICHARD M. JACOBSMEYER
Attorney for Petitioner
Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes
Petition for Writ of Review
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STATEMENT OF FACTS
It is undisputed in this case that applicant/respondent Ismael Miramonts sustained
a significant and serious work-related injury on or about May 30, 2006 while employed
by Lion Raisins petitioner herein.
In 2011 the Workers' Compensation Appeals Board issued an order finding
applicant to be permanently and totally disabled (100%) with a provision for further
medical treatment to cure or relieve from the effects of the injury. The Award of further
medical care did not make any embellishment as to the nature and extent of medical
treatment the injured worker was to receive for the effects of his injury.
Subsequent to the Award of medical treatment applicant began receiving home
healthcare services provided by family members with reimbursement paid at the rate of
8 hours per day, 7 days per week (56 hours) at $10.00 per hour. The services were
provided by unskilled and non-licensed individuals but appeared to be satisfactory to the
respondent.
In its legislative session in 2012 the legislature passed and the governor signed
SB 863 which adopted new statutory provisions concerning home healthcare services
including Labor Code § 4600 and 5703.8 both addressing home healthcare as medical
treatment provided under California Labor Code and instituting limitations and requiring
adoption of specialized regulations for both services and fees for home healthcare.
Prior to the passage of SB 863 applicant had been receiving home healthcare at the
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recommendation of Dr. Allan Kimmelman who had last reported in this matter in October
2009. Direction of applicant’s medical treatment had been taken over by Dr. Michael L.
Tran. Subsequent reports from Dr. Tran discussed applicant’s medical care but never
mentioned the need for ongoing home healthcare until a request was submitted by AIMS
acting as the claims administrator for petitioner herein on October 21, 2013. (Exhibit P ).
Dr. Tran failed to respond to the initial request for information concerning home
healthcare and subsequently submitted a request for authorization (RFA) requesting
“ongoing, full time, in-home healthcare and home care from 2/25/14 through 6/30/14.”
This request was made on 2/20/2014 and provided on an DWC-RFA format as required
by law but without any documentation or commentary to support the RFA.. (Exhibit I)
A subsequent utilization review determination by Allied Managed Care reflected
receipt of Dr. Tran’s RFA for permanent in-home healthcare however it was returned to
Dr. Tran pursuant to Administrative Director Regulation 9792.9.1(c)(2) on the basis that
the RFA was not complete for lack of a current PR-2 or narrative report to support the
requested authorization.
On 3/24/2014 Dr. Tran submitted a new request for authorization with a PR-2
format and narrative report again requesting “ongoing, full-time home healthcare and
home care from 2/26/14 through 6/30/2014.” (Exhibit J) On 3/26/2013 a determination
was issued by Managed Care Incorporated in reliance upon the chronic pain medical
treatment guidelines of the administrative director the request for ongoing, full time, inhome healthcare and home care from 2/26/14 through 6/30/14 was not certified (not
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authorized) as being inconsistent with the medical treatment guidelines.
Contemporaneous with the 3/24/2014 request for authorize for permanent in-home
healthcare services there was also a request for “two visits of occupational therapy with
evaluation for home healthcare hours needed” submitted by Dr. Tran. (Exhibit K) The
request for evaluation for in-home healthcare services was again reviewed by Allied
Managed Care Incorporated and in its determination of April 1, 2014 Allied Managed
Care certified (approved) two occupational therapy visits with evaluation for home
healthcare hours as requested by Dr. Tran. (Exhibit N)
On May 28, 2014 counsel for respondent Erik Petersen conducted the deposition
of Dr. Tran. However the deposition was interrupted as Dr. Tran only allowed 1 hour for
his proceeding and defendant was not able to complete its cross-examination of Dr. Tran.
Subsequently counsel for applicant filed a Declaration of Readiness to Proceed for an
expedited hearing which was objected to by counsel for defendant on the basis the
deposition of Dr. Tran had not been completed and was scheduled to be completed on
September 18, 2014.
The Declaration of Readiness to Proceed for expedited hearing was filed on
July 22, 2014, defendant’s objection to the Declaration of Readiness to Proceed was
timely filed on July 29, 2014 (Exhibits R & S) and the matter was set for an expedited
hearing on August 14, 2014 at which time the Honorable Judge Michael Hurley overruled
defendant’s objection to proceeding to hearing explicitly rejecting Petitoiner’s right to
complete the cross-examination of Dr. Tran. Admitted into evidence were the requests
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for authorization submitted by Dr. Tran as outlined above as well as the utilization review
determinations issued by defendant both non-certifying Dr. Tran’s request for full-time
attended care and certifying the occupational health visits to evaluate the hours needed
for applicant’s home healthcare.
On October 20, 2014 the Honorable Judge Michael J. Hurley issued his Findings
and Order including Findings of Fact (Exhibit C) determining that defendant had
provided home healthcare prior to March 6, 2014, terminated services as of that date for
lack of medical verification. He noted defendant has not presented medical evidence that
applicant’s condition was different after March 6 than it was prior to that date and the
defendant had presented no evidence that applicant was not in need of home healthcare.
On that basis the WCJ awarded home healthcare at the rate of $560.00 per week
beginning in March 2014 to present and continuing.
In making his Findings and Order Judge Hurley did not determine the utilization
review determinations which had been issued on the request for authorization by Dr. Tran
were untimely. Judge Hurley does not identify a specific defect essentially other than he
did not like the result and felt that the defendant “set up” applicant to terminate home
healthcare services. His principle argument that the UR determination was not valid was
based on the fact defendant had requested a report from Dr. Tran (Exhibit P) and
threatened to terminate services without documentation by the PTP, ultimately advised
both Dr. Tran and counsel for respondent that services would not continue to be paid
absent some medical verification as to necessity. When Dr. Tran finally did respond, he
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provided a dramatic escalation of the applicant’s need for attendant care with absolutely
no expressed rational (Exhibits I & J).
The WCJ criticizes Petitioner conduct of UR asserting there were other options
available to determine the extent of treatment required. However given the strictures in
Labor Code § 4610, the decision in State Comp. Insurance Fund v. Workers'
Compensation Appeals Board (Sandhagen) (2008) 44 Cal.4th 230, 73 Cal. Comp. Cases
981, Petitioner did not see itself as having the options suggested by Judge Hurley. In fact
one of the options he proposes, obtaining a medical legal evaluation, is specifically
prohibited by statute (Labor Code § 4062).
However what Judge Hurley ignores is that the request for authorization provided
by Dr. Tran was for “full time, in-home healthcare services”. This is for services far
beyond even what Judge Hurley ordered or for which the applicant had been receiving up
until the doctor’s request. Subsequent to the non-certification of full time, in-home
healthcare services Dr. Tran had requested an evaluation for the applicant to be seen for
assessment of the need for home healthcare services and specifically the hours that
applicant
would need such services.
That request
for authorization
was
certified/approved by defendant.
Defendant filed its Petition for Reconsideration (Exhibit D) from said Findings
and Award which was responded to by counsel for applicant (Exhibit E), a report
recommendation was received from the Workers’ Compensation Judge as required by
statute (Exhibit B) and on January 5, 2015 the Workers' Compensation Appeals Board
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issued its Order Denying Reconsideration adopting and incorporating the report of
Judge Hurley without further comment. (Exhibit A)1
It is from the Findings and Order of Judge Hurley and the order denying
petitioner’s appeal of that Findings and Order that relief is sought from this Court.
ISSUES PRESENTED
A. THE W.C.A.B. LACKED AUTHORITY TO AWARD MEDICAL
TREATMENT INDEPENDENT OF A UTILIZATION REVIEW
DETERMINATION PURSUANT TO LABOR CODE § 4610 IN THE
ABSENCE OF DEFECT IN THE UTILIZATION REVIEW
DETERMINATION.
B. THE DECISION OF THE WCJ IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE AND IS NOT IN COMPLIANCE WITH THE MEDICAL
UTILIZATION TREATMENT SCHEDULES MANDATED PURSUANT
TO LABOR CODE § 4604.5.
C. THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF THAT
DECISION ARE NOT CONSISTENT WITH THE W.C.A.B.’S EN BANC
DECISION IN DUBON (cited supra)
D. THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO COMPLETE
DISCOVERY BY FINISHING THE DEPOSITION OF Dr. TRAN WAS AN
ABUSE OF PROCESS.
The decision of the W.C.A.B. is actually date stamped December 5, 2015. That date is
clearly an error as December 15, 2015 has not yet occurred. However searching for the
file in EAMS the W.C.A.B.’s electronic adjudication management system the decision is
recorded as having issued on January 5, 2015 and this is consistent with the date the
parties received the decision in early January 2015. For purposes of this proceeding
petitioner believes the January 5, 2015 date is the date of issuance and the likely date of
service by the W.C.A.B. of said decision.
1
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POINTS AND AUTHORITIES
A.
THE W.C.A.B. LACKED AUTHORITY TO AWARD MEDICAL
TREATMENT INDEPENDENT OF A UTILIZATION REVIEW
DETERMINATION PURSUANT TO LABOR CODE § 4610 IN THE
ABSENCE OF DEFECT IN THE UTILIZATION REVIEW
DETERMINATION.
Petitioner's Appeal in this case is based upon a simple concept. Medical treatment
to which the injured worker is entitled pursuant to Labor Code § 4600 is subject to the
Utilization Review process (hereinafter U.R.) created by the legislature in Labor Code
§ 4610.
This principle has been recognized in multiple appellate cases as will be
discussed below, including en banc decisions of the W.C.A.B.
As part of a sweeping reform of workers' compensation benefits in legislative year
2012, the Legislature passed and the governor signed into law SB 863. That enactment
established a public policy regarding the provision of medical treatment expressed as
follows:
"The legislature finds and declares all of the following: …
(e) that having medical professionals ultimately determine the necessity of
requested treatment furthers the social policy of the state in reference to
using evidence-based medicine to provide injured workers with the highest
quality of medical care and that the provisions of the act establishing
independent medical review are necessary to implement that policy."
As part of the statutory scheme, the legislature altered the process for resolving
medical disputes by removal of the provisions under Labor Code § 4062 for resolution of
medical disputes using either Agreed Medical or Qualified Medical Examinations and
directed that all medical treatment disputes were to be resolved under Labor Code § 4610
through 4610.6.
Petitioner asserts the Workers' Compensation Appeals Board, in the decision of
the trial judge and the denial of reconsideration of that decision by the W.C.A.B., has
abrogated that statutorily mandated process by the Board which lacks the authority to
Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes
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make determinations as to medical necessity where Labor Code § 4610 has been properly
invoked.
1.
Home Healthcare Is Medical Treatment:
There is no serious dispute that home healthcare services which are the subject of
the dispute herein or medical treatment under Labor Code § 4600.
Subsection (h)
specifically provides that:
"Home healthcare services shall be provided as medical treatment only if
reasonably required to cure or relieve the injured employee from the effects
of his or her injury and prescribed by a physician and surgeon licensed
pursuant to Chapter 5 …"
Section 4600(h) makes clear that home healthcare services are included in the
definition of "medical treatment" but also limit an employer's duty to provide that
treatment by imposing additional burdens that are part of the injured worker's required
burden of proof. The first condition requires that home healthcare services be prescribed
by a physician (in this case Dr. Michael Tran) with the additional proviso that an
employer may become liable for home healthcare services provided 14 days prior to
receipt of a prescription (not at issue in this case). The second condition requires that an
employer's liability for home healthcare services be subject to either Section 5307.1 or
5307.8 depending on whether the Official Medical Fee Schedule or Medicare Fee
Schedule covers the home healthcare services. (Also not at issue in this case) (See
Roque Neri Hernandez v. Geneva Staffing, et al., W.C.A.B. en banc 79 Cal Comp
Cases 682)
2.
Medical Treatment Is Subject to Utilization Review Pursuant to Labor Code
§ 4610.
In the landmark holding by the California Supreme Court in State Comp.
Insurance Fund v. Workers' Compensation Appeals Board (Sandhagen) (2008) 44 Cal.4th
230, 73 Cal. Comp. Cases 981, (hereinafter Sandhagen) decisions to delay, deny, modify
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or approve medical treatment are mandatorily subject to the provisions of Labor Code
§ 4610 and not to any other resolution process. Prior to the passage of SB 863 disputes
over utilization review determinations were resolved pursuant to Labor Code § 4062
which required the parties to utilize either an Agreed or Qualified Medical Examiner to
address a contested medical dispute over treatment. Resolution of the disputes were
achieved through litigation at the Workers' Compensation Appeals Board with the
applicant having the burden of proof to show that medical treatment was reasonably
required.
Subsequent to the passage of SB 863, and effective 7/1/2013 for all existing
cases,2 the dispute resolution process for utilization review determinations was altered.
Pursuant to the dictates of that legislative enactment, disputes regarding utilization review
determinations to approve, delay, deny or modify medical treatment were subject to
appeal through the independent medical review process (IMR) under Labor Code
§§ 4610.5 and 4610.6.
Labor Code § 4610(e) provides as follows:
"A utilization review decision may be reviewed or appealed only by
independent medical review pursuant to this section. Neither the employee
nor the employer shall have any liability for medical treatment that is
furnished without the authorization of the employer if the treatment is
delayed, modified or denied by a utilization review decision unless the
utilization review decision is overturned by independent medical review in
accordance with this section."
In its en banc decision in Dubon v. World Restoration, Inc., State Compensation
Insurance Fund (79 Cal. Comp. Cases 1298), the Workers' Compensation Appeals Board
has held that utilization review decisions may only be considered invalid by the Workers'
Compensation Appeals Board where the utilization review determination was not timely.
SB 863 specifically provided the provisions of the newly enacted statute were to apply
to all pending cases regardless of the Date of Injury.
2
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However where the utilization review determination is timely, all other disputes
concerning utilization review must be resolved through independent medical review
pursuant to Labor Code § 4610.5 and 46010.6.
In doing so the W.C.A.B. reversed its prior decision which allowed review of
utilization review determinations based upon multiple perceived defects. Upon further
consideration the W.C.A.B. reversed itself and determined that the only utilization review
decision which can be reviewed by the W.C.A.B. is one which is invalid based upon
timeliness alone.3
B.
THE DECISION OF THE WCJ IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE AND IS NOT IN COMPLIANCE WITH THE MEDICAL
UTILIZATION TREATMENT SCHEDULES MANDATED PURSUANT
TO LABOR CODE § 4604.5.
Labor Code § 4604.5 provides as follows:
“a) The recommended guidelines set forth in the medical treatment
utilization schedule adopted by the administrative director pursuant to
Section 5307.27 shall be presumptively correct on the extent and scope of
medical treatment. Presumption is rebuttable and may controverted by a
preponderance of the scientific medical evidence establishing that a
variance from the guidelines reasonably is required to cure or relieve the
injured worker from the effects of his or her injury. The presumption
created is one affecting the burden of proof.”
In his decision awarding applicant medical treatment the WCJ makes no mention
of the medical treatment utilization schedule for home healthcare services. Reference to
those provisions are contained in the utilization review report dated April 1, 2015 with
citations to the chronic pain medical treatment guidelines. Those guidelines adopted by
Timeliness of utilization review determinations is based upon both the statutory
provisions of Labor Code § 4610 and the implementing regulations and Administrative
Director Regulation 9792.9.1.
3
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the administrative director in 2009. As noted by Dr. Enid Hoenig in his utilization
review determination of April 1, 2015 home healthcare services are “recommended only
for otherwise recommended medical treatment for patients who are homebound, on a part
time or “intermittent” basis, generally up to no more than 35 hours per week. Medical
treatment does not include homemaker services like shopping, cleaning, and laundry, and
personal care given by home health aides like bathing, dressing and using the bathroom
when the is the only care needed. (CMS, 2004)
Judge Hurley cites no other medical treatment guidelines or evidence-based
standards in arriving at his determination to award applicant eight hours per day seven
days per week of home healthcare assistance. The WCJ appears to rely upon testimony
given by Dr. Tran in his aborted deposition (stopped before petitioner could complete
their cross examination of the doctor) to identify eight hours per day as an appropriate
level of services. However Dr. Tran does not cite in his deposition any evidence-based
medical treatment guidelines. Indeed the injured worker in his testimony indicated that
he and Dr. Tran had never even discussed the issue of his home healthcare services and
the doctor would not have any directed knowledge as to the services applicant would
require.
Absent at least a reference to the medical treatment guidelines in consideration of
the definition of medical treatment under the MTUS the decision of the trial judge to
award medical care without reference to evidence-based medical treatment guidelines is
simply not supported by substantial evidence.
In Sandhagen cited supra as well as Duban cited supra both courts made it clear
that where the W.C.A.B. awards medical treatments there must be substantial evidence to
support the award of medical treatment.
“The legislature amended Section 3202.5 to underscore that all
parties, including the injured workers, must meet the evidentiary burden of
proof on all issues by preponderance of the evidence. (Staps. 2004, Ch. 34
Section 9.) Accordingly, notwithstanding whatever an employer does (or
does not do) an injured employee must still prove that the sought treatment
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is medically reasonable and necessary. That means demonstrating that the
treatment request is consistent with the uniform guidelines (Section
4600(b)) or alternatively, rebutting the application of the guidelines with a
preponderance of scientific medical evidence (Section 4604.5).”
Sandhagen, cited supra 44 Cal.4th at 242
While it might be convenient for the WCJ to award home healthcare services at a
level they had previously been provided there is no medical evidence that supports this
decision as being consistent with either the medical treatment guidelines or based upon
information which rebuts the medical treatment guidelines. Absent substantial evidence
as to the services that are required pursuant to the official treatment guidelines there is no
reasonable basis for awarding treatment outside of the medical treatment guidelines.
C:
THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF THAT
DECISION ARE NOT CONSISTENT WITH THE W.C.A.B.’S EN BANC
DECISION IN DUBON (cited supra)
Consistent with the holding in Dubon v. World Restoration (cited supra) the only
defect which allows the W.C.A.B. to make a determination as to medical necessity is a
determination that utilization review is not timely. In his decision awarding applicant the
home health care services at $560.00 per week Judge Hurley did not make a finding that
utilization review was completed in an untimely manner. Neither his opinion on decision
nor his report and recommendation on reconsideration cite any material defect in
utilization review consistent with the appeals board and bank decision which would allow
a determination of medical necessity by a trial judge or the W.C.A.B.
In both Sandhagen (cited supra) and Dubon (cited supra) the issue of timeliness of
utilization review was one for consideration by the W.C.A.B. Upon a finding by the
W.C.A.B. that utilization review was not timely, jurisdiction to make determinations as to
medical necessity under that decisional authority falls to the W.C.A.B. based upon
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substantial evidence. In this case the W.C.A.B. made no determination the utilization
review determination issued by petitioner’s UR vendor was untimely.
Absent a finding of untimeliness there is no jurisdiction for the W.C.A.B. to resolve a
dispute as to medical appropriateness of treatment.
“…with the exception of timeliness, all of the requirements go to the
validity of the medical decision or decision-making process. The
sufficiency of the medical records provided, expertise of the
reviewing physician and compliance with the MTUS are all
questions for the medical professional. If an injured worker disputes
a UR decision, Section 4610 mandates that it “shall be resolved in
accordance with Section 4610.5, if applicable …” (Section
4610(g)(3)(A)(italics added); see also Section 4610(g)(3)(B).)
Similarly, Sections 4610.5 and 4610.6, more thoroughly discussed
above, specifically provide that where there is a dispute regarding a
UR decision on “medical necessity” the dispute shall be resolved
only by IMR. (Section 4610.5(a)(1) and (2), (b), (e), (k).) With the
exception of timeliness all defects in the UR process can be
remedied when appealed to IMR.”
Dubon v. World Restoration cited supra at 39 Cal. Comp. Cases 1309.
Curiously, the injured worker received an additional utilization review regarding
authorization for home health care services which ultimately authorized continued
services with the review to determine the appropriateness of medical treatment. (Exhibit
O) Respondent contested that UR determination also at the W.C.A.B. and an Expedited
Hearing was held shortly after the hearing that is the subject of this appeal. The date of
that hearing was Sept 4, 2014. The same trial judge, with much of the same evidence
admitted at the W.C.A.B. proceeding (See Exhibit H) determined he did not have
jurisdiction to override the UR determination absent evidence that the UR determination
was not timely. (Exhibit G). There is no explanation is either decision of the WCJ as to
why on one occasion he is able to override a UR determination but in the other he is
bound by the statutory structures of Labor Code § 4610 and the W.C.A.B. decision in
Dubon (cited supra).
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If the trial judge had adopted that decision as an appropriate level for providing
services it would have been supported based upon a utilization review determination.
However the judge did not adopt and order the utilization review determination which
was made on July 16 in this decision. Such a ruling could have effectively provided the
applicant with the ongoing services until a further review could have been completed to
determine the appropriate level of services with determination as required by the
legislature in SB863 being made by medical professionals rather than workers’
compensation judges.
E.
THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO COMPLETE
DISCOVERY BY FINISHING THE DEPOSITION OF Dr. TRAN WAS AN
ABUSE OF PROCESS.
As noted in the Statement of Facts above and documented in the Minutes of
Hearing & Summary of Testimony (Exhibit F), the WCJ proceeded to hearing over
Petitioner’s objection. Prior to the Applicant’s Declaration of Readiness to Proceed
being filed, counsel for Petitioner had scheduled the deposition of Dr. Tran to be
completed on 9/18/14 (Exhibit S). At the prior deposition conducted by counsel for
respondent, the proceeding had been terminated by Dr. Tran due to time constraints
without Petitioner being able to complete its questioning of Dr. Tran (Exhibit Q).
At the Trial on August 14, 2014, the deposition of Dr. Tran, was admitted into
evidence and ultimately relied upon by Judge Hurley in his Opinion on Decision to award
the disputed medical treatment. The effect of the WCJ’s ruling was to allow Respondent
to develop a record but prohibit Petitioner the same right.
As noted by the Court of Appeal in the recent case of Ogden Entertainment
Services v W.C.A.B., 80 Cal. Comp. Cases 1, the right to cross-examination of witnesses
is a fundamental right:
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“We address in this case therefore nothing less than one of the fundamental
guarantees of a fair trial or, as in this case, a fair hearing, for there is no
doubt that the right of cross-examination is guaranteed to the parties in
workers' compensation proceedings. (Pacific Employers Ins. Co. v.
Industrial Accident Com. (1941) 47 Cal.App.2d 713, 715 [118 P.2d 848].)
This right is not only guaranteed as a matter of constitutional law, it is
specifically guaranteed by the Administrative Procedure Act in subdivision
(b) of Government Code section 11513.11 As far as the purposes of crossexamination are concerned, one cannot improve on the explanation of the
role of cross-examination given by Wigmore, quoted in People v.
Whitehead (1952) 113 Cal.App.2d 43, 48–49 [247 P.2d 717], which we set
forth in the margin.4
…
When, as in this case, a party is completely denied the fundamental right to
cross-examine the adverse party, there has not been a fair hearing. No one
would quarrel with the proposition that a litigant is entitled to an unbiased
judge or hearing officer and that a biased judge is the very definition of an
unfair hearing. Cross-examination of a witness, and especially the adverse
party, is similarly part and parcel of a fair hearing. The high station which
the right of confrontation occupies in our jurisprudence admits of no other
conclusion. There is therefore a case to be made that the error here was
reversible per se”
Ogden Entertainment Services v W.C.A.B., 80 Cal. Comp. Cases at 2, 3
Defendant in the matter was unable to complete its cross-examination of an
obviously key witness. In light of the WCJ’s reliance on the testimony of Dr. Tran, the
failure to allow defendant an opportunity to complete its cross-examination of the doctor
“‘The remaining and qualifying circumstances of the subject of testimony will probably remain
suppressed or undisclosed, not merely because the witness frequently is a partisan, but also and
chiefly because his testimony is commonly given only by way of answers to specific
interrogatories … and the counsel producing him will usually ask for nothing but the facts
favorable to his party. If nothing more were done to unveil all the facts known to this witness, his
testimony (for all that we could surmise) might present half-truths only. Someone must probe for
the possible (and usual) remainder. The best person to do this is the one most vitally interested,
namely, the opponent. Cross-examination, then, i.e. further examination by the opponent, has for
its first utility the extraction of the remaining qualifying circumstances, if any, known to the
witness, but hitherto undisclosed by him.’ (Wigmore, vol. V, [3d ed.] § 1368, p. 33.)” The
citation now is to 5 Wigmore Evidence (Chadbourn ed. 1974) § 1368, p. 36.
4
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can only be considered prejudicial. As pointed out it its Petition for Reconsideration,
there were numerous inconsistencies in the reporting for Dr. Tran and the information
provided by applicant, including the testimony by applicant that he had not discussed his
home health needs with Dr. Tran,that suggest cross-examination was a necessary
entitlement for Petitioner.
As the Court in Ogden, cited supra, opined:
“The appeals board's claim that its decision on permanent disability is
supported by substantial evidence is beside the point. The appeals board
exceeded its powers when it adopted a decision as its own that was flawed
by a denial of due process. Because the appeals board exceeded its powers,
its decision must be set aside. (Lab. Code, § 5952, subd. (a).)”
Ogden Entertainment Services v W.C.A.B., 80 Cal. Comp. Cases at 8
The same can be said of the decision in this case.
CONCLUSION
Based upon the above arguments petitioner would assert the W.C.A.B. has clearly
overstepped the bounds of its authority in issuing a decision by a trial judge and adopting
that decision by the W.C.A.B. to award medical treatment where there is no specified
identified statutory authorized defect in the utilization review determination issued by
defendant. Given the holding in Dubon (cited supra) that the only defect in utilization
review which is reviewable by the W.C.A.B. is where utilization review was not timely,
there is no jurisdiction to make medical determinations concerning the reasonableness
and necessity for medical treatment. Judge Hurley specifically did not make a finding
that utilization review was not timely in either his original decision or in his report for
recommendation on reconsideration. Absent a finding that utilization review was not
timely the applicant’s only appeal right was through Independent Medical Review (which
was not pursued) as directed by statute and outlined by the W.C.A.B. in Dubon (cited
supra).
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Petitioner would further assert that the decision of the trial judge to award services
at 56 hours per week is not supported by substantial evidence as there are no medical
treatment guidelines or evidence-based medicine reviewed or commented upon by the
judge that identified that level of service as being medically appropriate. The WCJ’s
refusal to allow defendant/Respondent to complete its cross-examination of Dr. Tran in
spited of timely objection to proceeding and having already scheduled a proceeding to
complete the doctor’s testimony prior to the injured worker’s attorney filing a request for
hearing is a clear abuse of process.
WHEREFORE petitioner requests the decision of the Workers' Compensation
Appeals Board awarding medical treatment be reversed, that the matter be remanded to
the W.C.A.B. for further proceedings and for such other and further relief as may be
deemed proper and just.
Respectfully submitted,
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
Dated: 2/19/15
__________________________________________
RICHARD M. JACOBSMEYER
Attorneys for Defendant
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IX
VERIFICATION AND WORD COUNT
I, Richard M. Jacobsmeyer, swear that I have read the within Petition for Writ of
Review and know the contents thereof; that the within brief contains 5471 words, based
on the automated word count of the computer word-processing program; that I am
informed and believe that the facts and law stated therein are true and on that ground
allege that such matters are true; that I make such verification because the officers of
Respondent are absent from the County where my office is located and are unable to
verify the petition, and because as attorney for Respondent I am more familiar with such
facts and law than are the officers.
Sworn and executed this February 19, 2015, at Oakland, California.
Respectfully submitted,
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
__________________________________________
RICHARD M. JACOBSMEYER
Attorneys for Defendant
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RE:
ISMAEL MIRAMONTES v. LIONS RAISINS, PSI; ADMINISTERED BY
AIMS
WCAB CASE NO: ADJ2777203
CLAIM NO:
A250000889
DOI:
05/30/2006
SJCC FILE NO: 3400-16043
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ALAMEDA
I am employed in the County of Alameda, State of California. I am over the age
of 18, and not a party to the within action. My business address is: Shaw, Jacobsmeyer,
Crain & Claffey, 475 – 14th Street, Suite 850, Oakland, CA 94612.
On February 19, 2015, I served the foregoing document(s) described as:
PETITION FOR WRIT OF REVIEW
on the interested parties in this action by placing the original, or a true copy thereof,
enclosed in a sealed envelope addressed as follows:
AIMS
P.O. BOX 28100
FRESNO, CA 93729
1ST DISTRICT COURT OF APPEAL
350 MCALLISTER ST
PETERSEN LAW OFFICES
519 SOUTH SCHOOL STREET
P.O. BOX 1468 UKIAH, CA 95482
ALAN KIMELMAN, MD
P.O. BOX 488
KENTFIELD CA 94914
WCAB
RECONSIDERATION UNIT
OFFICE OF COMMISSIONERS
P.O. BOX 429459
SAN FRANCISCO CA 94142-9459
Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes
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I am “readily familiar” with the firm’s practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S.
Postal Service on that same day, with postage thereon fully pre-paid at Oakland,
California, in the ordinary course of business. I am aware that on motion of party served,
service is presumed invalid if postal cancellation date or postage meter date is more than
one day after the date of deposit for mailing affidavit.
I declare, under penalty of perjury, under the laws of the State of California, that
the above is true and correct.
Executed on February 19, 2015, at Oakland, California.
DEREK STILES
(Type/Handwrite Name)
________________________
(Signature)
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