Gilson Daub Lien Department Prevails at Trial On Medical Necessity Issues
Written by Warren Hedstrom and Brent Daub
In a recent lien case litigated by the Gilson Daub Lien Department, the WCAB found that five lien claimants, Avantgarde Medical, Inc., Independent Interpreting, Mesa Pharmacy, Emerson Pharmacy, and Orange Park Medical Group, did not meet their burden of proof that their treatment provided to the injured worker was medically necessary to cure or relieve the effects of the industrial injury. The treatments provided by these lien claimants included extracorporeal shockwave therapy, topical analgesics compound cream medication, localized intense neuromuscular stimulation, trigger point impedance imaging, and interpreting services for the aforementioned treatment. This "Take Nothing" decision resulted in a savings of over $132,000.00 to Gilson Daub’s client.
The Gilson Daub lien team prevailed at trial arguing issues of medical necessity and lack of substantial medical evidence. A prior 2014 Findings and Award on the case in chief found that: 1) Applicant had sustained industrial injury to his cervical, thoracic, and lumbar spine; 2) Applicant was in need of further medical treatment to cure or relieve from the effects of these industrial injuries; and 3) “Applicant incurred self-procured medical treatment for reasonable and necessary expenses payable by defendant in amounts to be adjusted by the parties.”
The lien claimants argued that the defendants were liable for the entire medical treatment bill because of the 2014 Findings and Award. However, the plain language of that decision notes that the services were still subject to the legal requirement that services be “reasonable and necessary.” California Labor Code section 4610.5 establishes a hierarchy of medical evidence to determine whether or not treatment is “medically necessary.”
LC 4610.5 (2) Medically necessary and medical necessity mean medical treatment that is reasonably required to cure or relieve the injured employee of the effects of his or her injury and based on the following standards, which shall be applied in the order listed, allowing reliance on a lower ranked standard only if every higher ranked standard is inapplicable to the employee s medical condition:
(A) The guidelines adopted by the administrative director pursuant to Section 5307.27.
(B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service.
(C) Nationally recognized professional standards.
(D) Expert opinion.
(E) Generally accepted standards of medical practice.
(F) Treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious.
Furthermore, the DWC Administrative Director has promulgated its Medical Treatment Utilization Schedule (“MTUS”) that provides an analytical framework for medical providers for effective evidence-based treatment. Also, the Official Disability Guidelines (“ODG”) supplement the MTUS for evidence-based treatment. Per C.C.R. 9792.25, the MTUS (and recent ODG incorporation) is presumed correct on issues of extent and scope of medical treatment and may only be overcome by a preponderance of scientific medical evidence using strength of evidence criteria to show that deviation from the MTUS is reasonably required to cure or relieve the effects of industrial injury.
Gilson Daub attorneys argued that none of the treatment provided by the 5 lien claimants were supported by the MTUS or ODG guidelines. The lien claimants attempted to argue that the bills should be paid in full as the defendants failed to timely submit the Requests for Authorizations for the treatment through Utilization Review (“UR”).
However, the WCAB decision in the case of Dubon v. World Restoration (Dubon III) found that per the Sandhagen case, if a UR decision was untimely (or not done), the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with LC 4604.5. (Braewood Convalescent Hosp. v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566]. The Applicant and subsequent lien claimants still have the burden to establish that the treatment was “reasonably required” to alleviate the effects of the industrial injury. (L.C. 3202.5, 5705; L.C. 4600(a)).
Gilson Daub’s lien attorneys were successful in persuading the WCAB judge to allow the issue of medical necessity to be raised at trial even when Utilization Review had not been conducted. By providing the supporting guidelines from the MTUS and ODG that the lien claimants’ services were not medically necessary, and with a lack of rebuttal evidence by the lien claimants, the WCAB found in favor of Defendants and dismissed these five lien claimants in their entirety.
Warren Hedstrom is a trial attorney at the West Los Angeles office of Gilson Daub, Inc.
Brent Daub is a founder senior partner at Gilson Daub, Inc.