WCDefenseCA

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?