Esther Sandoval sustained an admitted industrial injury to numerous body parts, which included the shoulders while employed by the San Diego Unified School District. A request for authorization was made for right shoulder surgery in the form of a rotator cuff repair. The request was submitted for utilization review. Both parties stipulated that the utilization review was not performed in a timely manner. Therefore, pursuant to the opinion in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298, the panel stated “where there is no timely UR decision subject to IMR, the issue of medical necessity for the surgery is to be determined by the WCJ.”
The WCJ determined that the medical/legal opinions of the treating physician, Dr. Tradonsky, and the consultative report of Dr. John W Miles constitutes substantial evidence in favor of applicant’s present need for a right shoulder surgery.
Defendant filed a timely petition for reconsideration, which alleges that the opinions of Dr. Miles and Dr. Tradonsky do not comply with the requirements of labor code section 4604.5(a), as they failed to specifically cite the guidelines set forth in the medical treatment utilization schedule (MTUS) adopted by the administrative director pursuant to labor code section 5307.27. Two Commissioners disagreed in the terse denial of reconsideration in the case of Sandoval v San Diego Unified School District by simply stating “We agree with the WCJ that a requesting physician’s report need not cite to the MTUS in order to comply with Labor Code section 4604.5.1 Here, the medical evidence supporting applicant’s need for right shoulder surgery was not only consistent with the MTUS, but also compelling.” Commissioner Razo disagreed stating “I write separately, however, because I do not agree with the majority’s statement that a requesting physician’s medical report need not cite to the MTUS in order to comply with section 4604.5.”
The Opinion incorporated the Report of the WCJ which stated in pertinent part: “This WCJ disagrees with petitioner’s interpretation of labor code section 4604.5. In the present case, the issue presented is whether applicant should be provided with surgery in the form of a rotator cuff repair. The task of the WCJ is to review the provided medical reports, as well as the MTUS, and determine whether the treatment requested in the medical reports complies with the requirements of the MTUS. If the answer is in the affirmative, the treatment will be awarded to applicant.”
“In reviewing chapter 9 of the 2004 ACOEM practice guidelines, the following language appears under the heading Rotator Cuff Tear: “For partial thickness rotator cuff tears and small full-thickness tears presenting primarily as impingement, surgery is reserved for cases failing conservative therapy for three months. The preferred procedure is usually arthroscopic de compress1. 0n ….. ” In the present case, 10 months have passed from the date of injury. Applicant has not improved after three injections, and therefore it is clear that conservative therapy has failed. Therefore, the WCJ finds that the proposed treatment falls within the MTUS.”
Thus the WCAB approved of a WCJ being the person to read, interpret and apply treatment guidelines instead of a medical doctor. However, this stance seems to be contraindicated in prior panel and appellate level decisions. For example, the panel decision of Elvin Salguero v Charles Gemeiner Cabinets and Insurance Company of the West, January 2014 required a citation to a treatment guideline before an award of medical care. This split panel decision seems to be an erosion of the prior standards.