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Remyna Castillo, while employed as a production line worker, sustained an industrial injury to her head and brain in 2017.

On July 9, 2019, the PTP again submitted an RFA for continuation of the outpatient services at Casa Colina. Defendant continued to provide outpatient care to applicant until July 16, 2019, when defendant’s UR denied the request based on the Medical Treatment Utilization Schedule (MTUS) guidelines for traumatic brain injury.

Defendant attempted to serve the July 16, 2019 UR determination on applicant’s attorney. However, it was served to an incorrect suite number and was not received at applicant’s attorney’s office. (8 Cal. Code Regs. § 9792.9.1; and Cal. Code Civ. Pro. § 1013(a).

The WCJ found that defendant’s improper service of the Utilization Review (UR) determination renders it invalid, and the determination of medical necessity for the treatment may be made by the Appeals Board. The WCJ found defendant is liable for continuing applicant’s outpatient physical rehabilitation, consisting of transitional living center day treatment, transportation, and interpreter services, until they are no longer reasonably required.

Reconsideration of this finding and award was denied in the panel decision of Castillo v Midnight Impressions ADJ11092501 (March 2022).

Defendant contended that the evidence does not justify the award continuing applicant’s outpatient rehabilitation, transportation, and interpreter services, arguing the WCJ exceeded his jurisdiction by primarily relying on Patterson v. The Oaks Farm, 79 Cal. Comp. Cases 910, 2014 LEXIS 98 (Patterson), to extend the provision of applicant’s outpatient physical rehabilitation “in perpetuity” circumventing its right to request an RFA.

In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if a UR decision is untimely, the UR decision is invalid and not subject to independent medical review (IMR).

If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board.  Subsequent to Dubon II, in a significant panel decision, the Appeals Board held that a UR decision that is timely made, but is not timely communicated, is untimely. (Bodam v. San Bernardino County/Dept. of Social Services (2014) 79 Cal.Comp.Cases 1519.)

In this case, the WCJ correctly determined that the UR was invalid and that applicant should continue to receive treatment at Casa Colina because the need for continued treatment is supported by substantial medical evidence.

Applicant must still meet her burden to prove the treatment she requested is medically necessary. On this record, the WCAB panel was persuaded that applicant requires continued participation in the multi-disciplinary neuro-rehabilitation treatment program in order for her to make further improvements and sustain the progress she has made.

In a recent case, the Second District Court of Appeal denied a defendant’s Petition for Writ of Review, wherein the defendant asserted that the WCAB erred in relying on Patterson to award an applicant continued inpatient care at Casa Colina. (Nat’l Cement Co., Inc. v Workers’ Comp. Appeals Bd. (Rivota) (2021) 86 Cal. Comp. Cases 595, 2021 Cal. Wrk. Comp. LEXIS 21.)

In affirming the WCAB’s decision, the Court of Appeal stated that the applicant was not required to provide ongoing requests for authorization for his ongoing inpatient stay at Casa Colina, that defendant could not force applicant to be discharged from the facility by obtaining utilization review without showing a change in applicant’s condition or circumstance, and that applicant’s continued stay at Casa Colina absent a change in circumstances was required to prevent disruption of his medical care and promote continuity in his living situation.

Additionally, in Ferrona v. Warner Brothers (2015) 2015 Cal. Wrk. Comp. LEXIS P.D. 220, the WCAB, citing Patterson, upheld the WCJ’s decision and found that defendant was not entitled to unilaterally terminate applicant’s home health care services because there was no evidence of change in applicant’s condition or circumstances to indicate that home care services were no longer reasonably required to cure or relieve from effects of industrial injury.