WCDefenseCA

I know that not everyone is a fan of Monday mornings, my dear readers, so your humble blogger is happy to take the edge off with a relatively positive result from the WCAB.

One of the great gains made by the defense community as part of SB-863 was the implementation of IMR.  With review of UR determinations taken away from the WC system, and vested instead with Independent Medical Review, we saw UR determinations upheld with significant regularity.  Additionally, the costs involved have shifted to an administrative fee for a review, rather than the previous litigation costs of expedited hearings and appeals.

But, of course, the WCAB can still overrule a UR denial of requested medical treatment when the UR determination is not timely.  This explains why, in the weeks following the WCAB’s en banc determination in the case of Dubon, calendar sales skyrocketed all across California.

If your UR report is timely and otherwise valid, the odds are very high that it will be upheld by IMR.  If your UR report is NOT timely, your defense attorney has to take time out of his or her precious QME panel validity litigation to go to an expedited on whether the UR decision should stand on its merits.

So what’s the problem?  Well, much like the devil, the problem lies in the details.  California Labor Code section 4610 provides that “prospective or concurrent decisions shall be made in a timely fashion … not to exceed five working days from the receipt of a request for authorization for medical treatment…”  So, dear readers, pray tell… what is a working day?  Are Saturdays and Sundays working days?  Or, perhaps working days are any days except state Holidays? Shall we cite Genesis 2:2 in our pleadings?

That was the issue in the case of Puni Pa’u v. Department of Forestry.  Therein, applicant sought reconsideration of a WCJ’s finding that defendant’s UR determination to deny an RFA was timely.  Applicant contended that Saturday was a working day as contemplated by Labor Code section 4610.

The WCAB panel held that “although Saturday is a business day under Civil Code section 9, it is not a working day under Labor Code section 4610, because Labor Code section 4610 does not incorporate the definition of business day found in Civil Code section 9.”

Furthermore, the WCAB held that Code of Civil Procedure section 12a provides, that if the last day to perform any act falls on a Saturday or Sunday, that deadline is extended to the following Monday.

So… great news, right?  Although not binding authority, this certainly closes out another line of argument to snatch a UR determination out of the safety of IMR and into costly litigation.

I know at least 2 of my 12 readers are big Elton John fans, so let me end this blog post by reassuring you, once again, that since Saturdays don’t count towards the UR 5-day deadline…

Hello there dear readers! It’s been a minute… did you miss me?

Your humble blogger was talking workers’ comp as he often does (and all the cool kids always do) when someone offered an opinion: Utilization Review denial of further treatment does not preclude a finding of temporary disability benefits.

Now, we all remember the Go [go Power Rangers] case, in which the WCAB affirmed a WCJ’s finding that benefits resulting from a self-procured surgery previously non-certified by UR are owing to an applicant.  Go cited Barela v. Leprino Foods which likewise held that a UR determination does not bar PD or TD, only liability for medical treatment.  When applicant Go self-procured surgery that resulted in an increased level of PD, the WCAB required defendant to pay up.

But let’s take another spin on this – what happens when applicant is permanent and stationary but for treatment “X”.  After all, section 9785(a)(8) defines “permanent and stationary status” as when an applicant’s “condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

So… what happens when UR denies treatment “X”.  Is applicant P&S, because the condition is well stabilized for the next year at least?  Or, in the alternative, do the cases of Go and Barela stand for the proposition that applicant is entitled to TD benefits while awaiting a reversal of UR by internal appeal, IMR, or change of circumstances?

Well, one of the esteemed members of our workers’ compensation community provided me with a copy of the opinion in the case of Keltner v. California Guest Services.  Therein, Keltner sought reconsideration of a WCJ’s denial of TD benefits because the AME had determined applicant was permanent and stationary once UR denied lumbar surgery.

The WCAB majority affirmed the WCJ:

“The AMEs determination, that in the absence of surgery applicant had reached [P&S] constitutes substantial medical evidence … As the WCJ concluded, applicant’s condition meets the definition of permanent and stationary status, as there is no medical evidence that applicant’s condition is likely to substantially improve in the near future under his current medical treatment.  Since the UR/IMR determination disallowing surgery is final for one year, in the absence of changed circumstances, there is no basis to award continuing [TTD].”

The dissent would have issued an order to develop the record.

So, based on Keltner, if the sole reason for applicant’s status is the denial of medical treatment, applicant is likely NOT entitled to TTD.

But what do you do if you can’t get your medical-legal evaluator to commit?  What if your PTP or your QME says “well, until the injured worker gets that surgery, I’m going to keep him on TD, so there!”

Well, I would submit that Labor Code section 5705 holds that “[t]he burden of proof rests upon the party … holding the affirmative of the issue.”  So if a party is claiming TD, wouldn’t the burden fall upon that party to show that applicant’s condition is likely to change in the next year?

Happy Monday, dear readers!

Welcome back from the weekend, dear readers! Isn’t 2019 flying right by?  It feels like it’s been 2 months since new years’ but it’s actually only been two weeks.  The cold will never stop, the sun will never come back, and in the back of your humble blogger’s mind plays that old song on repeat: “hello darkness my old friend… why are you here it’s 4 p.m. …?”

Anywho, to reward you for your loyalty in readership and discerning taste in subscription (I know that not just anyone is allowed to contaminate your e-mail inbox), I am going to tell you a little workers’ compensation secret.  If a defendant is providing a certain type of medical treatment, it is not allowed to stop unless there’s a change in medical circumstances.  That’s right! Look through the Labor Code and you won’t find it; search through the regs but it isn’t there!  That’s because this secret is just a figment of some applicant attorneys’ imaginations.  It is a myth, a fantasy, not unlike Keyser Soze, which is why it’s such a well-kept secret, of course.  (To be fair, dear readers, there is one WCJ’s ruling and a no-comment WCAB approval that supports this conclusion, but this is non-binding and has no regulatory or statutory authority that your humble blogger can find; it would appear that the case discussed in this blog post directly conflicts with any guidance provided by the Miramontes result.)

With that in mind, I bring to your attention the relatively recent panel decision in the matter of Gonzalez v. First Presbyterian Church of Santa Barbara.  Therein, an applicant sustained an admitted injury and resolved her case via stipulated award with open future medical.  The case was reopened via petition but that’s not really related to the issue at hand.

Defendant was providing home health care for more than four years.  When applicant’s treating physician submitted yet another request for continued home health care, the request was forwarded to UR which issued a timely denial.  Applicant made a timely request for IMR but also challenged the validity of the UR denial at an expedited hearing.  Defendant raised the issue of jurisdiction based on the WCAB’s decision in Dubon II.

After the expedited hearing, the WCJ ruled that as UR was timely, the WCAB had no jurisdiction to review the decision – it had to go to IMR if it was to go anywhere at all.

The WCAB in reviewing the decision, ruled that a defendant can terminate home health care services if they are no longer necessary, and UR is one method of proving that they are no longer reasonably necessary to cure or relieve from the effects of the injury.

So what’s the lesson to learn here?  Well for defendants it is an old one: UR and IMR trend towards cost containment, and, of course “a trend is your friend.”

But, believe it or not, there is a lesson here for applicants as well.  There is a difference between medical treatment and a medical treatment award.  Just like we all learned in law school (or in preschool for that matter) a promise is different than performance on the promise.

The workers’ compensation landscape is increasingly becoming one where obtaining a medical treatment award is getting easier, but getting actual treatment – whether because no doctor is willing to starve his or her family by accepting workers’ comp fee schedule or because UR and IMR are very aggressive – is getting harder and harder.

So, perhaps there is some sense in applicant attorneys encouraging their clients to C&R their claims.  An aspirin in the hand is worth two on your PTP’s RFA.

Happy Monday, dear readers!

Your humble blogger appeared recently on a lien claim and was presented with the following argument, which I’m sure many of you have encountered as well:

“Uhh… this isn’t IMR territory… this is, umm… coding dispute! Yeah, that’s the ticket, it’s a coding dispute!”

Suddenly, your humble blogger was reliving his childhood as he told his disappointed parents “I don’t want to be a coder! I want to go to law school and deny workers’ comp benefits!”

“Uhhh… Humble Blogger, you there?” woke me from my flashback and I got back into the matter at hand.

We ultimately resolved the lien for less than what it would have cost for a (very reasonably priced) attorney to take it to trial.  But it got me to thinking – how much mileage does this argument get?

Labor Code section 4903.05(c)(1) requires lien claimants to state, under penalty of perjury, that their liens are NOT subject to Independent Bill Review (IBR).  That is, if the only dispute between the defendant and the lien claimant is the amount of payment due for the services provided, the issue goes to IBR and NOT to the WCAB.

As per section 4603.6, the defendant reviews the bill and provides an appropriate payment.  The lien claimant then either accepts that as final or requests a re-review.  Then if the re-review does not satisfy the lien claimant, it has 30 days to request IBR.

In theory, this should clear the decks at least a little bit for the WCAB to resolve actual disputes such as those affecting the injured worker’s claims to benefits.

IBR is a whole lot cheaper and more efficient than having a defense attorney appear at the WCAB and then possibly take the matter to trial, so the lien claimants would naturally prefer the more expensive route so they can shake down the defendants for more money.

Well, how do they get around the whole IBR thing then?  Well, the argument goes that the dispute is about anything other than billing, such as whether the procedure get to be coded as a separate item or as part of an already-paid for item.  For example, if billing code XYZ is for a series of up to 3 injections, but the lien claimant billed each injection as its own code XYZ, the first one might be paid but the second and third would be rejected by the defendant.

Well, that’s the argument that was also advanced in the case of Senquiz v. City of Fremont, a panel opinion issued back in November of 2017.

In Senquiz defendant refused to pay for two of the injections performed by lien claimant, and a WCJ found that the matter was NOT subject to IBR because when defendant’s position is that it need pay $0 out of the demanded amount, it is not a billing dispute but rather a dispute over liability for the treatment or whether the treatment was reasonable at all.

The WCJ also opined that because bill review rejected payments based on Medicare’s CCI editing process, which are not expressly adopted by the Labor Code.

The WCAB reversed, however, reasoning “the only issue that must be resolved in order to determine the amount lien claimant is owed under the OMFS is whether the relevant bills used the correct procedure codes.  If the WCAB had jurisdiction to resolve that question, the WCAB would effectively be determining the amount due under the fee schedule.”

The WCAB ruled that the lien was subject to IMR.  Presumably, if applicant failed to timely seek IMR, the lien bills would be “satisfied” by operation of law.

I took a look for similar cases and found Tepfer v. San Diego Gas & Electric, which had a similar ruling.

What do you think, dear readers?  Is a dispute about whether the proper billing codes were used sufficient to escape IBR?  Or should defendants start taking these to trial in the hopes of pursuing subsequent “res judicata” defenses against repeat-player lien claimants?

Happy Wednesday, dear readers… or, at least, it WOULD be if I had a better case to bring to your attention.

The matter is that of Sutter Solano Medical Center v. WCAB, a recent writ denied case.  The facts are fairly straight forward – applicant had an admitted injury to the neck.  Applicant’s PTP submitted an RFA for neck surgery, which Utilization Review denied.  Applicant then self-procured the medical treatment and demanded increased PD and TD resulting from the surgery.

If you are curious about the results of this issue, imagine your humble blogger’s normally grimacing face going into extra-grimace mode.  The WCJ and the WCAB both held that UR might shield defendant from liability for the medical procedure costs, but the resulting PD and TD claims are not defeated by Utilization Review.

In the immortal words of Pedro Chespirito, “no me gusta.”

The WCJ cited a 2009 panel decision (Barela v. Leprino Foods (ADJ3226482)) for the rule that UR does not bar PD or TD, only liability for medical treatment.

The panel added to the reasoning by noting that there are generally two methods of obtaining treatment.  That treatment provided by the employer, subject to UR and IMR, is held to the standard of being reasonably necessary to cure or relieve from the effects of the injury.  However, the panel noted that this standard is not applied to self-procured medical treatment.  Which, of course, your humble blogger reads to means that an injured worker can seek out and pay for unreasonable methods of treatment – and the unreasonable aspect of the treatment can both be as to the method and the risks involved.

The panel decision concludes by inviting the legislature to get involved if the legislative intent is to allow UR denials of medical treatment authorization to extend to resulting TD and PD.  As much as your humble blogger would like such a legislative amendment, in my limited experience, seeking legislation is poking the bear – the “reforms” that come from legislation end up create more litigation (which is great for defense attorneys like me!) but also creating more exceptions, loopholes, limitations, and harm for employers.

After all, the reform of SB-863 essentially enshrined Almaraz/Guzman as part of the law rather than repealing it.  And, even though Ogilvie is essentially dead for post 1/1/13 dates of injury with the elimination of diminished future earnings capacity, we now have a body of law holding that a “forceful blow”, like a slip-and-fall, is an act of violence.

Anywho, there is sufficient panel authority out there to support this conclusion, but, conceptually, your humble blogger has a hard time following the logic.  UR has made a determination that a particular method of treatment is not reasonably necessary.  If the applicant proceeds with this treatment isn’t it, legally speaking, unreasonable?

Additionally, why isn’t this being treated as the functional equivalent of a non-industrial injury?  Had applicant sustained another injury subsequent to being found P&S, even a non-industrial injury, wouldn’t we expect the evaluators to apportion accordingly?  If Applicant had X permanent disability before the surgery (or the pretend non-industrial injury) and now has Y permanent disability, shouldn’t her level of PD still be X?

One of the points of reasoning in reaching this conclusion was that the PTP and the AME both agreed that applicant’s surgery was necessary.  Isn’t that the point of UR – to determine if the treatment is thus?  AMEs are even prohibited from addressing matters reserved for UR and IMR, as per Labor Code section 4062.2(f).

In short, what is to prevent an employee from taking unnecessary medical treatment risks, and forcing the defendant to bear the costs of failed or even technically successful procedures?

In the instant case, applicant underwent a serious surgical procedure at her own expense, and the medical professionals involved, whatever the weight or relevance of their opinions as to the proceedings, reasonably opined that the procedure was necessary.

Now let your imagination wander away from this scenario and look at some… “other” forms of treatment.  In Ukraine (or, the Ukraine for my American friends) people are treated with radon baths for orthopedic injuries.  Would the resulting lung cancer and related benefits be the responsibility of a defendant?

I bet a little bit of google digging would find all sorts of… unusual… methods of treatment, including administering snake-bites, prolonged “faith healing” including refusal of any medicine in the interim, or exorcism.  Are defendants supposed to be on the hook for all the fallout from these things?  Believe me, dear readers, I have had cases where the PTP or QME decides that the radon baths are “reasonable” even though there was never an RFA, let alone UR and IMR.

So, what do you think, dear readers – is it worth it to open Pandora’s Box with new legislation on this?  Or is this a rarity and applicants will rarely self-procure?

Hello, dear readers!

It’s a wonderful day in the world of workers’ compensation.  Benefits are being denied, UR is being slowly but diligently upheld by IMR, and your humblest blogger has another blog post for you!

Today’s post is the case of Maciel v. RP Automotive, Inc., in which the WCJ ordered a new QME panel due to defendant’s alleged ex parte communication with the then-QME, only to recommend defendant’s petition for removal be granted on the basis that applicant’s counsel did not assume representation until after the letter in question had been sent, and said letter was sent to and received by the then-unrepresented applicant.  (Need another cup of coffee?  Basically, defendant copied in-prop-per applicant with a letter to the QME, applicant’s counsel gets retained and complains of ex-parte, WCJ determines that Order granting new panel should be rescinded).

Ok, everything is peachy, right? Why is that blogger guy wasting my precious internet time on this drivel when I could be looking at pictures of cats or researching how to handle a difficult doctor (the answer to that one, dear readers, is to bring a big bushel of apples to the doctor-depo!)

Defendant files for removal.  The WCAB reviews this and re-designates it a petition for reconsideration.  Are you getting this?

For years and years and years, many practitioners KNEW that QME panel disputes were NOT to be the basis of reconsideration petitions, and that the consequential delay in resolution and stripping the WCJ of jurisdiction, were effectively a bad-faith delay tactic.  Petitions filed petitions for “reconsideration and/or removal” and then sheepishly said “I dunno” and shrugged.

In fact, the WCAB panel held, en banc, that a dispute of a panel was proper for a petition for removal in Messele v. Pitco Foods, Inc (remember the one about how to count the first day for requesting a panel?)

Now, this panel of commissioners is opining that “[t]his requirement gives the opinions of the QME an elevated status that can be characterized as ‘critical’ to determination of the underlying issues in a case… From this perspective, a WCJ’s decision that resolves whether or not to allow a replacement QME panel in the determination of a critical issue, and a Petition for Reconsideration is the appropriate vehicle to challenge the determination.”

So, dear readers, what do you think?   Going forward, are you going to file petitions for reconsideration for panel disputes?  If nothing else, the Maciel opinion should be enough justification to avoid the imposition of sanctions for seeking reconsideration instead of removal.

Happy Hunting!

It’s Wednesday, dear readers – and you know that means… another blog post!

Today’s post is about everyone’s favorite topic – UR!  Often enough, we in the defense community are faced with a late UR report – maybe the vendor made a late determination; maybe the vendor made a late communication; maybe the vendor was late with both!

When faced with this situation, and while trying to avoid an order to provide medical treatment, lots of options are available.  For example, you could sneak into applicant’s attorney’s home and turn all the clocks and calendars back one day, replacing all newspapers with copies of yesterday’s edition and then trying, with one’s best poker face, to convince opposing counsel that the report was actually on time… (just a joke, dear readers, please don’t actually sneak into anyone’s home!)

In the recent pane decision of Hill v. California Highway Patrol, defendant argued that the underlying RFA was defective itself.  To wit, defendant argued that the RFA was invalid because it did not cite the Medical Treatment Utilization Schedule (MTUS).

The treatment in question was a “back defender” system to help applicant-investigator carry his duty belt which weighted heavy on his back, the subject of a stipulated award from 2008.  The system would essentially transfer the 25 pounds of the duty belt from applicant’s hip and back to his shoulders.

Defendant argued that unless the treating physician’s RFA either cites the MTUS or explains why the MTUS doesn’t apply, the RFA is invalid.  The WCJ disagreed, citing, instead Sandoval v. San Diego Unified School District (a 2016 panel case) where the commissioners held that “a requesting physician’s report need not cite to the MTUS in order to comply with Labor Code section 4604.5.”

So, what did the commissioners do with this one?

The commissioners ruled that, much like the WCJ opined, the defendant had blown the deadline for a valid UR determination.  However, the PTP’s recommendations are still subject to the standards of Labor Code section 4610.5(c)(2).  Specifically, the employee bears the burden of proving that the treatment is reasonably required, and the underlying RFA must “refer to any applicable standards under section 4610.5(c)(2) to support his opinion that the Back Defender System is reasonable and necessary.”

The WCAB ordered the matter to return to the trial level for the WCJ to conduct further discovery to develop the record.

Now, here’s something that’s a bit unfair to the defendants.  In her report and recommendation, the WCJ opined that “[a]ny UR determination made now on the request for a back brace would be untimely… since utilization review was not conducted within five working days of the [PTP’s] request, it is too late to conduct it now.”  And that’s fair – it’s too late for the defendant to conduct UR.

However, shouldn’t it also be too late to conduct any further discovery?  Why should the PTP get an opportunity to cure any defects in his RFA with a supplemental report if it is too late for defendant to cure an untimely UR?  As it stands now, it is very likely that applicant cannot carry his burden of medical necessity without further evidence – such as a more detailed report from the PTP.

That aside, this back defender system runs about $200, which might get eaten up with one UR and one IMR.  The back defender system or the particular treatment in this case is not the point.  The point is that less money could be spent on litigation and more money on providing benefits if treating physicians did the leg work to justify their recommendations in the RFA.  If the request for authorization cannot be justified medically, then perhaps the request should not be made.

Unfortunately, as it stands right now, there does not appear to be any binding authority that can be cited for the proposition that the RFA must cite the MTUS to trigger defendant’s UR obligations.

Happy Friday, dear readers!

One of the cases making the rounds and being discussed at the proverbial water coolers is that of Lopez v. City of San Francisco.  To cut to the chase, the issue presented was whether a request for authorization submitted by a secondary treating physician was subject to Utilization Review.  Or, another way to ask it – is the insurer/employer free to ignore RFAs by secondary treating physicians.

As we all know, California Code of Regulations section 9785 provides that an injured worker can only have one “primary treating physician” at a time (subsection (b)(1)) and a “secondary physician” is any physician other than the PTP who examines or provides treatment to the employee.

The panel of commissioners held that even though the RFA comes from the secondary treating physician, unless the employer wants the determination of medical necessity made by a judge on the merits, the employer must timely conduct utilization review.

Unless there’s a statutory amendment on the horizon, defendants would be well served to submit secondary treating physician requests for authorization to Utilization Review.  The only mitigating factor is the fact that under Labor Code section 4610(g)(6), a UR determination will typically stand for one year, unless the RFA is submitted by a new physician or there is a change in circumstances.

One of the frustrating things about this decision, however, is that an applicant can have any number of secondary treating physicians, who could all take turns submitting the exact same treatment request until there is a late UR report or a UR physician finally agrees.  In the meantime, defendants have to keep paying for every UR.

One of the things that should be considered when trying to see the forest behind all those pesky trees is whether it’s worth it: whether the cost of UR and IMR and the litigation surrounding both is worth the cost of the treatment.

Sorry folks – no good news for the defense community today.

Have a great weekend!

Happy Friday, dear readers!

I hope you had a wonderful St. Patrick’s day, with a bit of safe revelry on the one hand, and some traditional Irish cuisine on the other.

As the “luck of the Irish” would have it, defendants have had their hopes rekindled in the form of Cornejo case.  As my readers will recall, the WCAB ruled, en banc, that attorneys need not use “bonded” copy services when attempting to obtain records.

Well, the defendant was unhappy with this result, and, in response to its Petition for Reconsideration, the WCAB has granted the petition “to allow sufficient opportunity to further study the factual and legal issues in this case.”  In other words, there is potential for a different ruling – one that would require copy services to prove proper registration in order to collect on their liens.

What does this mean for defendants?  Well, copy services liens can be frustrating, but most of the attention of the Workers’ Comp community is now directed to the Court of Appeal to see what kind of law we can expect on the status of late IMR decisions: binding or no?

Obviously, your humble blogger is hopeful that the WCAB will be persuaded that that professional copy services need to be bonded in order to collect on their liens – after all, who else would the law apply to if not professional copy services, even when they are retained by law firms?

In the meantime, perhaps defendants could use this uncertainty to split the proverbial baby with existing lien claimants and resolve liens at an “uncertainty” discount.

Here’s hoping for the best, dear readers!

Special Thanks to S.O. for the tip!

Hello, dear readers!  Another weekend is gone, another week is starting, and here we are: your humble blogger rampaging against good sense and common decency into his blog posts, and you, the reader, watching this train wreck and helpless to look away.  Let’s be honest folks… it’s either reading this blog post or going back to do real work – the choice is clear.

For those of you still reading, have you seen the Rodolfo Arroyo case yet?  It’s a recent panel decision which seeks to, once again, test the limits of the Dubon II (en banc) decisions giving sacrosanct status to UR determinations.

Applicant sustained an admitted injury and received a motorized scooter which broke down after about five years of use.  His treating physician requested either repair or replacement of the scooter, and, when the issue was submitted to UR, the UR determination addressed whether or not a scooter was necessary, rather than whether the repair or replacement was necessary.  In upholding the UR determination, the WCJ reasoned that once the UR G-ds had spoken in a timely fashion, the will of Olympus was not mortal men or women to dispute.

In granting applicant’s petition for removal, the commissioners the WCAB reasoned that “the UR considered whether provision of a scooter is medically supported, but that is not the issue raised by the request for authorization.”  Although it may be appropriate to stop treatment at a certain point, or, rather, it may be appropriate not to authorized further treatment of a kind that medically reasonable and necessary at one point, the issue here is that UR answered a question that no one asked.

Now, if you will recall, dear readers, there was a similar case to this one reported earlier on this blog.  In the Takafua case the PTP requested assistive devices, like handrails in the shower, and IMR, in upholding the UR denial, responded by denying authorization for in-home care.  In that case, the WCJ held that applicant was entitled to a new IMR decision, which appears to be the only remedy available for a defective IMR.

Now, as reasonable as the commissioners’ ruling is, in theory, here’s a thought to consider:  if UR is tasked with deciding whether repairs or replacement of an already-provided scooter are medically necessary and reasonable, the UR physician is really being asked whether the use of a motorized scooter is necessary NOW.  Whether or not it was necessary 5 years ago, the question remains of whether or not the injured worker still needs it.  Only after answering the first question, in the affirmative, can the UR physician address the second.

If the UR physician is saying “you don’t need repairs or replacement because you don’t need a scooter in the first place” then the denial should hold.

Now, here’s another thought –  what the commissioners DID NOT rule on was whether or not the repair or replacement of the scooter was medically necessary, but only that the WCAB has jurisdiction to review the question on the merits.

Defendant’s exhibit 1 is going to be the UR report, in all likelihood: the reasons militating against a scooter are the reasons militating against repair or replacement.

What do you think, dear readers?  Should this one have been confined to IMR?