CHRISTOPHER TORRES, Applicant,
v.
CONTRA COSTA SCHOOLS INSURANCE GROUP; STATE COMPENSATION INSURANCE FUND, Defendants.
Nos. ADJ3011154, ADJ3631113
Nos. SAC 0309784, SAC 0309785
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State Of California
January 1, 2001
(Significant
Panel Decision)
OPINION
AND DECISION AFTER RECONSIDERATION
Deidra
E. Lowe
We
previously granted applicant's petition for
reconsideration of the February 18, 2014 Findings Of Fact And
Order of the workers' compensation administrative law
judge (WCJ) who dismissed applicant's appeal of a
November 12, 2013 Independent Medical Review (IMR)
determination because it was not verified.[1]
Applicant
contends that defendant's utilization review (UR) and the
EVER determination were both flawed and that it is unjust to
dismiss his EVER appeal for lack of verification.
The
February 18, 2014 decision of the WCJ is rescinded as our
Decision After Reconsideration. The WCJ correctly concluded
that applicant's EVER appeal is subject to dismissal
because Labor Code section 4610.6(h) provides that such a
determination "may be reviewed only by a
verified appeal." While lack of verification
does not automatically require dismissal of an unverified
petition, an appeal may be dismissed for lack of verification
if the appealing party does not cure the defect within a
reasonable time after receiving notice of the defect.
The
case is returned to the trial level for further proceedings
on applicant's EVER appeal. If the lack of verification
is cured by applicant within 20 days of service of this
decision as allowed herein, the merits of the EVER appeal
should be addressed by the WCJ. If verification of the appeal
is not provided by applicant as allowed herein, the WCJ may
again dismiss the EVIR appeal for lack of verification.
BACKGROUND
It is
admitted that applicant sustained industrial injury to his
left knee while working for defendant as a claims examiner on
October 15, 1998, causing 27% permanent disability and need
for future medical treatment (SAC 0309784, ADJ3011154). It is
also admitted that while in that same employ on July 28,
2000, applicant sustained industrial injury to his neck and
spine causing a need for medical treatment (SAC 0309785,
ADJ3631113).
For a
period of time, defendant authorized the Duragesic patches
and Norco prescribed by applicant's primary treating
physician, Douglas Grant, M.D., to relieve the pain caused by
applicant's industrial injuries.2 However, after Dr. Grant
requested authorization to refill additional prescriptions
for Duragesic patches and Norco in June 2013, defendant's
UR physician Claudio Palma, M.D., issued a July 9, 2013 UR
determination certifying the request for Norco, but
conditionally denying certification of the request for
Duragesic patches. In denying certification, Dr. Palma wrote
in the UR determination that additional information had been
requested concerning "specific reasons as to why the
patient was initially prescribed Duragesic patches over other
medications, include history of all medications tried,
specifically history with opioids," along with a copy of
applicant's most recent lab test if available, but that
the requested information had not been received. Dr. Palma
further wrote that the conditional non-certification
"represents an administrative action taken to comply
with regulatory time frame constraints, and does not
represent a denial based on medical necessity," and that
the request for authorization for Duragesic patches
"will be reconsidered upon receipt of the information
requested."
Applicant
disagreed with the UR determination and submitted an
application for IMR on August 2, 2013. On August 15, 2013,
applicant's attorney sent the IMR organization an
additional report by Dr. Grant concerning applicant's
history and use of Duragesic patches.
An IMR
determination dated November 12, 2013 was sent to
applicant's attorney, stating without further explanation
that Duragesic patches were...
