BRICE SANDHAGEN, Applicant,
v.
COX & COX CONSTRUCTION, INC.; and STATE COMPENSATION INSURANCE FUND, Defendant(s).
No. RDG 0115958
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State Of California
November 16, 2004
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, CHAIRMAN.
On
October 5, 2004, the Appeals Board granted reconsideration of
the July 21, 2004 Findings and Award and Order of the
workers' compensation administrative law judge
("WCJ"), which related to the October 22, 2003
neck, back, left elbow and left wrist injury that applicant,
Brice Sandhagen ("applicant"), sustained while
employed as a construction foreman by Cox & Cox
Construction, the insured of defendant, State Compensation
Insurance Fund ("SCIF").
In her
July 21, 2004 decision, the WCJ found that the cervical and
upper thoracic MRI recommended by applicant's treating
physicians, Noel Goldthwaite, M.D., and Robert Josey, M.D.,
falls within the American College of Occupational and
Environmental Medicine's Occupational Medicine Practice
Guidelines ("ACOEM guidelines") and that applicant
is entitled to this treatment. In making these findings, the
WCJ concluded that, because SCIF had not complied with the
deadlines of Labor Code section 4610(g)(1),
[1] it was barred
from reliance on the utilization review process and,
accordingly, the report of its utilization review physician
was inadmissible. Further, the WCJ concluded that where a
defendant does not comply with the deadlines for the
utilization review process established by section 4610(g),
the burden is on the defendant to timely object to the
treating physician's determination under section 4062.
Here, however, SCIF did not make such a timely objection and,
therefore, no agreed medical evaluator ("AME") or
qualified medical evaluator ("QME") had been
obtained. Thus, there was no admissible medical report to
contest the treatment recommended by Drs. Goldthwaite and
Josey. Finally, the WCJ determined that ACOEM does not limit
MRIs to those cases that have already been determined to be
surgical, and that an MRI is a valid diagnostic tool under
ACOEM for applicant's condition.
In its
petition for reconsideration, SCIF contended in substance:
(1) the exclusion of a utilization review report from
evidence is not one of the statutorily-specified consequences
for a defendant's failure to comply with the section
4610(g)(1) deadlines; rather, the specified consequences are
administrative penalties (see, Lab. Code, §4610(i)) and
section 5814 penalties, if there has been an unreasonable
delay in the completion of the utilization review process
(see, Lab. Code, §4610.1); (2) under section 4062, it is
the employee's burden, and not the defendant's
burden, to timely object to a utilization review decision
made pursuant to section 4610 to modify, delay, or deny a
treatment recommendation; and (3) a cervical and upper
thoracic MRI is not consistent with the ACOEM guidelines,
which are presumptively correct, and Drs. Goldthwaite and
Josey have not rebutted the presumption.
Applicant
did not file an answer to SCIF's petition. The WCJ,
however, prepared a Report and Recommendation on Petition for
Reconsideration ("Report"), recommending that the
petition be denied.
Because
of the important legal issues presented, and in order to
secure uniformity of decision in the future, the Chairman of
the Appeals Board, upon a majority vote of its members, has
assigned this case to the Appeals Board as a whole for an en
banc decision. (Lab. Code, §115.)
2 Based on our review
of the relevant statutory and case law, we hold:
(1) The utilization review time deadlines of section
4610(g)(1) are mandatory and, if a defendant fails to meet
these mandatory deadlines, it is precluded from using the
utilization review procedure for the particular medical
treatment dispute in question;
(2) If a defendant undertakes an untimely utilization review
procedure, any utilization review report obtained as to the
particular treatment in dispute is not admissible in
evidence, and any utilization review report obtained cannot
be forwarded to an AME or QME if section 4062(a) procedures
are timely pursued; and
(3) When a defendant does not meet the section 4610(g)(1)
deadlines, it may use the procedure established by section
4062(a) to dispute the treating physician's treatment
recommendation; however, the defendant (not the applicant) is
then the "objecting party" and the defendant must
meet the section 4062(a) deadlines, unless those deadlines
are extended for good cause or by mutual agreement.
I.
BACKGROUND
Applicant
sustained an admitted industrial injury to his neck, back,
left elbow, and left wrist on October 22, 2003, when, while
walking along a road construction project, he was hit by a
car traveling approximately 10 mph.
For the
first several months after his injury, applicant was treated
by Akua Agyeman, M.D.. On April 23, 2004, Dr. Agyeman stated
that applicant has a pinched nerve in his mid-thoracic spine
causing muscle spasms, that he continues to have significant
mid-back pain, and that he has had no significant improvement
in his pain control even with pain medications.
At some
point, Dr. Agyeman referred applicant to Dr. Goldthwaite and
Dr. Josey for a surgical consultation. These physicians took
a history of applicant's injuries and complaints,
reviewed x-rays of his cervical spine, and performed a
thorough physical examination. In their joint report of May
14, 2004, Drs. Goldthwaite and Josey diagnosed applicant to
have cervical and upper thoracic facet syndrome
(C7–T1). They then stated, in relevant part:
"Our first plan would be to get an MRI of the cervical
and upper thoracic spine to determine if there are any disc
herniations or disc degeneration accounting for
[applicant's] neck pain. [¶] We will see him back in
follow up after his MRI. If his MRI is within normal limits,
then most likely the next recommendation would be upper
thoracic and lower cervical facet injections."
The May
14, 2004 report reflects it was served by mail on SCIF at its
address of record. Also, on May...
