MICHAEL A. WILLETTE, Applicant,
v.
AU ELECTRIC CORPORATION; and STATE COMPENSATION INSURANCE FUND, Defendant(s).
No. SJO 0245781
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
2004
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, CHAIRMAN.
On
August 9, 2004, the Appeals Board granted reconsideration of
the May 17, 2004 Findings and Award issued by the
workers' compensation administrative law judge
("WCJ").
In the
May 17, 2004 decision, it was found that Michael A. Willette
("applicant") sustained industrial injury to his
low back and tailbone on October 13, 2003, while employed as
an alarm installer by Au Electric Corporation, the insured of
State Compensation Insurance Fund ("defendant"). In
relevant part, it was further found that applicant will need
further medical treatment to cure or relieve the effects of
his injury, including the treatment jointly prescribed by his
primary treating physician, Michael D. Butcher, M.D., and his
secondary pain management physician, Hessam Noralahi, M.D.,
consisting of a TENS unit, water therapy, and acupuncture.
Moreover,
at the May 12, 2004 trial preceding his decision, the WCJ
determined that the utilization review reports of Roger
Chappelka, M.D., are not admissible in evidence because they
are not the reports of an examining or treating physician,
they do not include the statutorily required declaration, and
they are not signed.
In its
petition for reconsideration, defendant contends in
substance: (1) the utilization review reports of Dr.
Chappelka should have been received in evidence consistent
with the utilization review process established by Labor Code
section 4610;
1 (2) under section 4604.5(c), in effect
at the time of the May 12, 2004 trial and the May 17, 2004
decision, the American College of Occupational and
Environmental Medicine's Occupational Medicine Practice
Guidelines ("ACOEM guidelines") are presumptively
correct on the issue of the extent and scope of medical
treatment; (3) Dr. Chappelka's utilization review reports
observe that the ACOEM guidelines do not find acupuncture to
be efficacious and do not recognize TENS units to be an
effective modality of treatment; and (4) even if Dr.
Chappelka's utilization review reports are not
admissible, the record contains no evidence from which the
WCJ could conclude either that the ACOEM guidelines support
the treatment requested, that a variance from the ACOEM
guidelines is warranted, or that other evidence-based medical
treatment guidelines support the treatment requested.
Applicant,
who is unrepresented, did not file an answer to
defendant's petition, however, the WCJ 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) If an employer's utilization review physician does
not approve an employee's treating physician's
treatment authorization request in full, then an
unrepresented employee (if he or she desires to dispute the
utilization review physician's determination) must timely
object, and then a panel qualified medical examiner
("QME") must be obtained to resolve the disputed
treatment issue(s);
(2) Once the panel QME's evaluation has been obtained,
neither the treating physician nor the utilization review
physician may issue any further reports addressing the
post-utilization review treatment dispute;
(3) The panel QME should ordinarily be provided with and
consider both the reports of the treating physician and the
utilization review physician regarding the disputed issues;
(4) If a post-utilization review medical treatment dispute
goes to trial after the panel QME issues his or her report,
both the treating physician's and the utilization review
physician's reports are admissible in evidence; and
(5) When a WCJ or the Appeals Board issues a decision on a
post-utilization review medical treatment dispute, the
reports of the panel QME, the treating physician, and the
utilization review physician will all be considered, but none
of them is necessarily determinative.
I.
BACKGROUND
On
December 15, 2003, applicant had an evaluation with
defendant's QME in orthopedic surgery, Duc M. Nguyen,
M.D.
3 Dr. Nguyen found that applicant had
sustained an industrial injury to his low back and tailbone
on October 13, 2003; however, based on the evaluation, Dr,
Nguyen opined that applicant was permanent and stationary as
of December 15, 2003, without any permanent disability,
although he said applicant would need six weeks of physical
therapy.
After
seeing Dr. Nguyen, applicant began treatment with Dr.
Butcher, an orthopedic surgeon. As part of applicant's
treatment, Dr. Butcher referred him to Dr. Noralahi for pain
management. Eventually, Dr. Butcher and Dr. Noralahi
prescribed a TENS unit, water therapy, and acupuncture, among
other treatment modalities.
Based
on utilization review reports issued by Dr. Chappelka,
defendant denied the requests for a TENS unit, water therapy,
and acupuncture. In essence, Dr. Chappelka's utilization
review reports concluded that applicant had been declared
permanent and stationary without any disability, that he is
not in need of any further medical treatment at this time,
that no justification had been given for the requested
treatment, and that, in any event, the requested treatment
did not fall within the ACOEM guidelines.
On
April 14, 2004, applicant filed a declaration of readiness to
proceed to an expedited hearing on the issue of medical
treatment.
The
matter came on for an expedited hearing on May 12, 2004, at
which the WCJ excluded Dr. Chappelka's reports, largely
because they are not the reports of an examining or treating
physician. Thereafter, the WCJ issued the May 17, 2004
decision allowing the treatment prescribed by Drs. Butcher
and Noralahi.
Applicant
has not been represented by an attorney at any point in these
proceedings.
II.
DISCUSSION
We
focus here on construing recently enacted or amended sections
4610, 4062, 4062.1, and 4062.3 with respect to the procedures
they establish for resolving post-utilization review disputes
regarding treatment prescribed by an unrepresented
employee's physician(s). This opinion is not intended to
and does not address all of the myriad issues that surround
the utilization review process.
When
the Appeals Board interprets workers' compensation
statutes, its fundamental objective is to determine the
Legislature's intent so as to effectuate the purpose of
the law. (DuBois v. Workers' Comp. Appeals Bd.
(1993) 5 Cal.4th 382, 387 [58 Cal.Comp.Cases 286];
Nickelsberg v. Workers' Comp. Appeals Bd. (1991)
54 Cal.3d 288, 294 [56 Cal.Comp.Cases 476]; Moyer v.
Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222,
230 [38 Cal.Comp.Cases 652].)
The
best indicator of legislative intent is the clear,
unambiguous, and plain meaning of the statutory language.
(DuBois v. Workers' Comp. Appeals Bd.,
supra, 5 Cal.4th at pp. 387-388; Gaytan v.
Workers' Comp. Appeals Bd. (2003) 109 Cal.App.4th
200, 214 [68 Cal.Comp.Cases 693]; Boehm & Associates
v. Workers' Comp. Appeals Bd. (Lopez)...
