Marissa Gonzalez-Ornelas injured both her knees in 2004 while working as a counselor for the County of Riverside.
In 2015, her treating physician submitted a request for authorization to provide her with Synvisc injections in both knees. Defendant submitted the request to UR, and a UR decision issued denying authorization. She appealed the UR denial to IMR. An IMR determination issued denying authorization. She timely appealed the IMR determination to the WCAB pursuant to Labor Code section 4610.6(h).
The WCJ denied applicant’s IMR appeal based upon the finding that “[t]here is no clear and convincing evidence that the determination was procured by fraud,” and “[there is no clear and convincing evidence that the determination was the result of a plainly erroneous finding of fact, which erroneous finding is a matter of ordinary knowledge, and not a matter subject to expert opinion.” The WCAB reversed the WCJ in the panel decision of Gonzalez-Ornelas v County of Riverside.
The !MR reviewer wrote that denial of authorization was because, “[t]here is no documentation that the patient failed conservative therapies” and “[t]here is no documentation that the patient is suffering from osteoarthritis or severe osteoarthritis that did not respond to conservative therapies.” These statements by the IMR reviewer are directly contradicted by what is set forth in Dr. Jackson’s December 30, 2014 notes which were in the IMR file.
Page four of the December 30, 2014 progress notes by Dr. Jackson states that applicant complained of pain in both knees at that time and that x-rays of the knees showed “some medial compartment arthritis and minimal patella-femoral arthritis.” On page five of the notes, Dr. Jackson provides a diagnosis that includes “primary osteoarthritis of the right knee … primary osteoarthritis of the left knee” and “unilateral post-traumatic osteoarthritis” of both knees. (Id.) Dr. Jackson further documents in his notes that applicant had left knee surgery “with no real decrease in her symptoms,” but that she did have “definite benefit” with Synvisc injections in both knees over the years, writing on page five that applicant “has undergone treatment on a very conservative basis which has been complicated by her morbid exogenous obesity which also would have precluded any significant intervention other than simple conservative measures as have been done.” (Id.) Dr. Jackson opined that applicant will eventually need bilateral total knee replacements, but that Synvisc injections will help her symptoms until surgery and that Synvisc is recommended because applicant “does not do well with cortisone.” (Id.)
The WCAB panel concluded that “Denying authorization based upon a finding that there is “no documentation” when such documentation is, in fact, in the possession of the IMR reviewer is “a plainly erroneous express or implied finding of fact [as] a matter of ordinary knowledge based on the information submitted for review … and not a matter that is subject to expert opinion” as described in section 4610.6(h)(5). It is also an action taken “without or in excess of the administrative director’s powers” as described in section 4610.6(h)(I). The !MR appeal should have been granted by the WCJ on both those grounds.”
“Contrary to the view expressed by the WCJ in her Report, expert opinion is not needed in order to determine that the IMR decision in this case is defective. It is within the realm of ordinary knowledge to conclude that it was error for the IMR reviewer to state that there is “no documentation” when such documentation is part of the record, as in this case. It is also within the realm of ordinary knowledge to determine from the face of the IMR decision that the use of the injections is recommended by the ODG for people who suffer from osteoarthritis in their knees, like applicant.”
The panel ordered the Administrative Director to “provide a new IMR of the treatment forthwith in accordance with section 4610.6(i) and this decision. As part of the new IMR, the ODO should be applied based upon the documentation in the record, which as discussed above, appears to support the provision of the Synvisc injections.”