Court of Appeal of the State of California s3

CASE NO.: ______

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ______

LIONS RAISINS, Permissibly Self Insured Petitioner, vs. WORKERS' COMPENSATION APPEALS BOARD and ISMAEL MIRAMONTES, Respondents, ______

WCAB Case No.: ADJ2777203 HONORABLE PRESIDING JUSTICE ______PETITION FOR WRIT OF REVIEW ______RICHARD M. JACOBSMEYER, ESQ. SBN: 66300 SHAW, JACOBSMEYER, CRAIN & CLAFFEY 475 – 14th Street, Suite 850 Oakland, CA 94612 TEL NO: (510) 645-7172 Attorney for Petitioner I. CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court, Rule 8.208

Court of Appeal Case Caption: LION RAISINS, Permissibly Self Insured v. 1stApp. District – Div ___ WCAB, et al.

Name of Interested Entity or Person Nature of Interest

Please check here if applicable

There are no interested entities or parties to list in this Certificate per California Rules of Court 8.208(d).

______Date: February 19, 2015 Signature of Attorney or Unrepresented Party

Printed Name: RICHARD M. JACOBSMEYER, ESQ. State Bar No.: 66300 Address: SHAW, JACOBSMEYER, CRAIN & CLAFFEY 475 – 14th Street, Suite 850 Oakland, CA 94612 TEL NO: (510) 645-7172 Party Represented: Petitioner

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 2 of 28 II. TABLE OF CONTENTS

I. CERTIFICATE OF INTERESTED ENTITIES OR PERSONS……….…1 II. TABLE OF CONTENTS ……………………………………….…….. 2 III. TABLE OF AUTHORITIES… …………………………………………..3 IV. PETITION FOR WRIT OF REVIEW …………………..…………….. .5 V. STATEMENT OF FACTS…………………..……………….……………9 VI. ISSUES PRESENTED FOR REVIEW …………………………………14 VII. POINTS AND AUTHORITIES ……………………………………….15 a. THE W.C.A.B. LACKED AUTHORITY TO AWARD MEDICAL TREATMENT INDEPENDENT OF A UTILIZATION REVIEW DETERMINATION PURSUANT TO LABOR CODE § 4610 IN THE ABSENCE OF DEFECT IN THE UTILIZATION REVIEW DETERMINATION b. THE DECISION OF THE WCJ IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS NOT IN COMPLIANCE WITH THE MEDICAL UTILIZATION TREATMENT SCHEDULES MANDATED PURSUANT TO LABOR CODE § 4604.5. c. THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF THAT DECISION ARE NOT CONSISTENT WITH THE W.C.A.B.’S EN BANC DECISION IN DUBON (cited supra) d. THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO COMPLETE DISCOVERY BY FINISHING THE DEPOSITION OF Dr. TRAN WAS AN ABUSE OF PROCESS.

VIII. CONCLUSION ………………………………………………………… 24 IX. VERIFICATION AND WORD COUNT ……………………………….26 X. DECLARATION OF SERVICE ……………………………………….27 XI. EXHIBIT LIST AND EXHIBITS ………………………………….…….29 (Filed as attachments)

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 3 of 28 III. TABLE OF AUTHORITIES CASES :

Roque Neri Hernandez v. Geneva Staffing, et al. 12 WCAB en banc 79 Cal Comp Cases 682

State Compensation Ins Fund v W.C.A.B. (Sandhagen) 9, 12, 15, 16 44 Cal. 4th at 242

Dubon v World Restoration, Inc., 3, 10, 13, 16, 17, 20 79 Cal. Comp.Cases 1298

Ogden Entertainment Services v. WCAB 18, 19, 20 80 Cal. Comp.Cases 1

Chadbourn ed. 1974 19

CAL CODE OF REGS: Administrative Director Regulation 9792.9.1(C)(2) 6 Administrative Director Regulation 9792.9.1 14

STATUTES: Labor Code 4600 2, 5, 11, 12 Labor Code 4604.5 2, 10 Labor Code 5950 3 Labor Code 5703.8 5 Labor Code 4610 9, 10, 11, 12, 13, 17 Labor Code 4062 9, 11 Labor Code 4610.6 12, 13, 17 Labor Code 4610.5 13, 17 Labor Code 4610(e) 13 Labor Code 4604.5 14 Labor Code 3202.5 15 Labor Code 4600(b) 15

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 4 of 28 In The Court of Appeal

Of the State of California First Appellate District, Division ___

LION RAISINS, Permissibly Self Insured Petitioner, vs. WORKERS' COMPENSATION APPEALS BOARD and ISMAEL MIRAMONTES, Respondents, ______

WCAB Case No.: ADJ2777203

TO THE HONORABLE PRESIDING JUSTICE AND THE HONORABLE

ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, FISRT APPELLATE DISTRICT:

COMES NOW Defendants LION RAISINS, hereinafter Petitioner, by and through its attorneys of record, the Law Offices of Shaw, Jacobsmeyer, Crain and

Claffey, PC seeking review by this Court with its Petition For Writ of Review following the Order denying Defendants’ Petition for Reconsideration of the Findings and Award in this matter.

By verified Petition Petitioner alleges as follows:

1. Petitioner was and is at all times mentioned herein a Permissibly Self Insured

Employer authorized to conduct business within the State of California with a

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 5 of 28 principal site of business in Selma, Ca and with operations at multiple locations

throughout the State of California.

2. Ismael Miramontes, hereinafter, Respondent, was employed in Selma,

California by Petitioner on May 30, 2006 when he sustained injury arising out

of and occurring in the course of that employment..

3. Ismael Miramontes filed a claim for workers’ compensation benefits with the

Workers’ Compensation Appeals Board (W.C.A.B.) and received an award of

Permanent Total (100%) Disability with an award of medical treatment to cure

or relieve from the effects of the injury.

4. As part of his entitlement to medical treatment, respondent has received

assistance at his home of home health aids

5. Petitioner herein has engaged the services of Acclamation Insurance

Management Services (AIMS) to administer workers’ compensation benefits

for its employees including the benefits for Respondent.

6. As part of its obligation to administer medical benefits in this workers'

compensation claim, AIMS has utilized the services of Allied Managed Care

Services to perform Utilization Review of requests for medical treatment

submitted by Respondent’s treating physician pursuant to Labor Code § 4610.

7. As part of its obligation to determine benefits to be provided appropriately

pursuant to Labor Code § 4600 as defined in Labor Code § 4604.5, a Request

for Authorization was submitted by Respondent’s treating physician, Dr. Tran,

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 6 of 28 which was reviewed by Allied Managed Care and a timely determination as to

appropriate medical treatment was made and served on the parties.

8. The Workers’ Compensation Judge (WCJ) determined at an Expedited Hearing

that the UR determination was not valid and ordered medical treatment

contrary to the Utilization Review determination.

9. The W.C.A.B. denied Petitioner’s appeal of the WCJ’s award of medical

treatment issued contrary to the Utilization Review determination.

Petitioner seeks issuance of a Writ of Review on the following grounds:

1. The Findings of Fact and Award issued by the Judge Hurley and the

Order Denying Petitioner’s Petition for Reconsideration are not

supported by substantial evidence.

2. The Findings of Fact and Award issued by the W.C.A.B. and the Order

Denying Petitioner’s Petition for Reconsideration are unreasonable.

3. The W.C.A.B. in awarding Petitioner treatment contrary to the

Utilization Review determination acted in excess of its power under the

W.C.A.B.’s en banc decision in Dubon v World Restoration Inc, 79 Cal.

Comp. Cases 1298 (Dubon II)

4. Petitioner has no right to appeal from the Order Denying Petition for

Reconsiderat1on and has no plain, speed or adequate remedy other than

by this Writ of Review which is authorized pursuant to Labor Code §

5950.

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 7 of 28 Wherefore, Petitioner prays that a Writ of Review issue from this Court to the W.C.A.B. commanding that body to certify to the Court at a designated time and place, the record of proceedings in this case so that the Court may inquire into the lawfulness of the

W.C.A.B.’s denial of Reconsideration and the Findings of Fact and Award of the

W.C.A.B. be reversed, the Award of benefits be annulled, vacated and set aside and such other relief as the Court deems appropriate.

Executed on February 19, 2015 in Oakland, California.

Respectfully submitted,

SHAW, JACOBSMEYER, CRAIN & CLAFFEY

______

RICHARD M. JACOBSMEYER

Attorney for Petitioner

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 8 of 28 STATEMENT OF FACTS

It is undisputed in this case that applicant/respondent Ismael Miramonts sustained a significant and serious work-related injury on or about May 30, 2006 while employed by Lion Raisins petitioner herein.

In 2011 the Workers' Compensation Appeals Board issued an order finding applicant to be permanently and totally disabled (100%) with a provision for further medical treatment to cure or relieve from the effects of the injury. The Award of further medical care did not make any embellishment as to the nature and extent of medical treatment the injured worker was to receive for the effects of his injury.

Subsequent to the Award of medical treatment applicant began receiving home healthcare services provided by family members with reimbursement paid at the rate of

8 hours per day, 7 days per week (56 hours) at $10.00 per hour. The services were provided by unskilled and nonlicensed individuals but appeared to be satisfactory to the respondent.

In its legislative session in 2012 the legislature passed and the governor signed

SB 863 which adopted new statutory provisions concerning home healthcare services including Labor Code § 4600 and 5703.8 both addressing home healthcare as medical treatment provided under California Labor Code and instituting limitations and requiring adoption of specialized regulations for both services and fees for home healthcare.

Prior to the passage of SB 863 applicant had been receiving home healthcare at the

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 9 of 28 recommendation of Dr. Allan Kimmelman who had last reported in this matter in October

2009. Direction of applicant’s medical treatment had been taken over by Dr. Michael L.

Tran. Subsequent reports from Dr. Tran discussed applicant’s medical care but never mentioned the need for ongoing home healthcare until a request was submitted by AIMS acting as the claims administrator for petitioner herein on October 21, 2013. (Exhibit P ).

Dr. Tran failed to respond to the initial request for information concerning home healthcare and subsequently submitted a request for authorization (RFA) requesting

“ongoing, full time, in-home healthcare and home care from 2/25/14 through 6/30/14.”

This request was made on 2/20/2014 and provided on an DWC-RFA format as required by law but without any documentation or commentary to support the RFA.. (Exhibit I)

A subsequent utilization review determination by Allied Managed Care reflected receipt of Dr. Tran’s RFA for permanent in-home healthcare however it was returned to

Dr. Tran pursuant to Administrative Director Regulation 9792.9.1(c)(2) on the basis that the RFA was not complete for lack of a current PR2 or narrative report to support the requested authorization.

On 3/24/2014 Dr. Tran submitted a new request for authorization with a PR2 format and narrative report again requesting “ongoing, full-time home healthcare and home care from 2/26/14 through 6/30/2014.” (Exhibit J) On 3/26/2013 a determination was issued by Managed Care Incorporated in reliance upon the chronic pain medical treatment guidelines of the administrative director the request for ongoing, full time, in- home healthcare and home care from 2/26/14 through 6/30/14 was not certified (not

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 10 of 28 authorized) as being inconsistent with the medical treatment guidelines.

Contemporaneous with the 3/24/2014 request for authorize for permanent in-home healthcare services there was also a request for “two visits of occupational therapy with evaluation for home healthcare hours needed” submitted by Dr. Tran. (Exhibit K) The request for evaluation for in-home healthcare services was again reviewed by Allied

Managed Care Incorporated and in its determination of April 1, 2014 Allied Managed

Care certified (approved) two occupational therapy visits with evaluation for home healthcare hours as requested by Dr. Tran. (Exhibit N)

On May 28, 2014 counsel for respondent Erik Petersen conducted the deposition of Dr. Tran. However the deposition was interrupted as Dr. Tran only allowed 1 hour for his proceeding and defendant was not able to complete its cross-examination of Dr. Tran.

Subsequently counsel for applicant filed a Declaration of Readiness to Proceed for an expedited hearing which was objected to by counsel for defendant on the basis the deposition of Dr. Tran had not been completed and was scheduled to be completed on

September 18, 2014.

The Declaration of Readiness to Proceed for expedited hearing was filed on

July 22, 2014, defendant’s objection to the Declaration of Readiness to Proceed was timely filed on July 29, 2014 (Exhibits R & S) and the matter was set for an expedited hearing on August 14, 2014 at which time the Honorable Judge Michael Hurley overruled defendant’s objection to proceeding to hearing explicitly rejecting Petitoiner’s right to complete the cross-examination of Dr. Tran. Admitted into evidence were the requests

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 11 of 28 for authorization submitted by Dr. Tran as outlined above as well as the utilization review determinations issued by defendant both non-certifying Dr. Tran’s request for full-time attended care and certifying the occupational health visits to evaluate the hours needed for applicant’s home healthcare.

On October 20, 2014 the Honorable Judge Michael J. Hurley issued his Findings and Order including Findings of Fact (Exhibit C) determining that defendant had provided home healthcare prior to March 6, 2014, terminated services as of that date for lack of medical verification. He noted defendant has not presented medical evidence that applicant’s condition was different after March 6 than it was prior to that date and the defendant had presented no evidence that applicant was not in need of home healthcare.

On that basis the WCJ awarded home healthcare at the rate of $560.00 per week beginning in March 2014 to present and continuing.

In making his Findings and Order Judge Hurley did not determine the utilization review determinations which had been issued on the request for authorization by Dr. Tran were untimely. Judge Hurley does not identify a specific defect essentially other than he did not like the result and felt that the defendant “set up” applicant to terminate home healthcare services. His principle argument that the UR determination was not valid was based on the fact defendant had requested a report from Dr. Tran (Exhibit P) and threatened to terminate services without documentation by the PTP, ultimately advised both Dr. Tran and counsel for respondent that services would not continue to be paid absent some medical verification as to necessity. When Dr. Tran finally did respond, he

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 12 of 28 provided a dramatic escalation of the applicant’s need for attendant care with absolutely no expressed rational (Exhibits I & J).

The WCJ criticizes Petitioner conduct of UR asserting there were other options available to determine the extent of treatment required. However given the strictures in

Labor Code § 4610, the decision in State Comp. Insurance Fund v. Workers'

Compensation Appeals Board (Sandhagen) (2008) 44 Cal.4th 230, 73 Cal. Comp. Cases

981, Petitioner did not see itself as having the options suggested by Judge Hurley. In fact one of the options he proposes, obtaining a medical legal evaluation, is specifically prohibited by statute (Labor Code § 4062).

However what Judge Hurley ignores is that the request for authorization provided by Dr. Tran was for “full time, in-home healthcare services”. This is for services far beyond even what Judge Hurley ordered or for which the applicant had been receiving up until the doctor’s request. Subsequent to the non-certification of full time, in-home healthcare services Dr. Tran had requested an evaluation for the applicant to be seen for assessment of the need for home healthcare services and specifically the hours that applicant would need such services. That request for authorization was certified/approved by defendant.

Defendant filed its Petition for Reconsideration (Exhibit D) from said Findings and Award which was responded to by counsel for applicant (Exhibit E), a report recommendation was received from the Workers’ Compensation Judge as required by statute (Exhibit B) and on January 5, 2015 the Workers' Compensation Appeals Board

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 13 of 28 issued its Order Denying Reconsideration adopting and incorporating the report of

Judge Hurley without further comment. (Exhibit A)1

It is from the Findings and Order of Judge Hurley and the order denying petitioner’s appeal of that Findings and Order that relief is sought from this Court.

ISSUES PRESENTED

A. THE W.C.A.B. LACKED AUTHORITY TO AWARD MEDICAL TREATMENT INDEPENDENT OF A UTILIZATION REVIEW DETERMINATION PURSUANT TO LABOR CODE § 4610 IN THE ABSENCE OF DEFECT IN THE UTILIZATION REVIEW DETERMINATION.

B. THE DECISION OF THE WCJ IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS NOT IN COMPLIANCE WITH THE MEDICAL UTILIZATION TREATMENT SCHEDULES MANDATED PURSUANT TO LABOR CODE § 4604.5.

C. THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF THAT DECISION ARE NOT CONSISTENT WITH THE W.C.A.B.’S EN BANC DECISION IN DUBON (cited supra)

D. THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO COMPLETE DISCOVERY BY FINISHING THE DEPOSITION OF Dr. TRAN WAS AN ABUSE OF PROCESS.

1 The decision of the W.C.A.B. is actually date stamped December 5, 2015. That date is clearly an error as December 15, 2015 has not yet occurred. However searching for the file in EAMS the W.C.A.B.’s electronic adjudication management system the decision is recorded as having issued on January 5, 2015 and this is consistent with the date the parties received the decision in early January 2015. For purposes of this proceeding petitioner believes the January 5, 2015 date is the date of issuance and the likely date of service by the W.C.A.B. of said decision.

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 14 of 28 POINTS AND AUTHORITIES

Petitioner's Appeal in this case is based upon a simple concept. Medical treatment to which the injured worker is entitled pursuant to Labor Code § 4600 is subject to the Utilization Review process (hereinafter U.R.) created by the legislature in Labor Code § 4610. This principle has been recognized in multiple appellate cases as will be discussed below, including en banc decisions of the W.C.A.B. As part of a sweeping reform of workers' compensation benefits in legislative year 2012, the Legislature passed and the governor signed into law SB 863. That enactment established a public policy regarding the provision of medical treatment expressed as follows: "The legislature finds and declares all of the following: …

(e) that having medical professionals ultimately determine the necessity of requested treatment furthers the social policy of the state in reference to using evidence-based medicine to provide injured workers with the highest quality of medical care and that the provisions of the act establishing independent medical review are necessary to implement that policy."

As part of the statutory scheme, the legislature altered the process for resolving medical disputes by removal of the provisions under Labor Code § 4062 for resolution of medical disputes using either Agreed Medical or Qualified Medical Examinations and directed that all medical treatment disputes were to be resolved under Labor Code § 4610 through 4610.6. Petitioner asserts the Workers' Compensation Appeals Board, in the decision of the trial judge and the denial of reconsideration of that decision by the W.C.A.B., has abrogated that statutorily mandated process by the Board which lacks the authority to

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 15 of 28 make determinations as to medical necessity where Labor Code § 4610 has been properly invoked. 1. Home Healthcare Is Medical Treatment: There is no serious dispute that home healthcare services which are the subject of the dispute herein or medical treatment under Labor Code § 4600. Subsection (h) specifically provides that: "Home healthcare services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of his or her injury and prescribed by a physician and surgeon licensed pursuant to Chapter 5 …"

Section 4600(h) makes clear that home healthcare services are included in the definition of "medical treatment" but also limit an employer's duty to provide that treatment by imposing additional burdens that are part of the injured worker's required burden of proof. The first condition requires that home healthcare services be prescribed by a physician (in this case Dr. Michael Tran) with the additional proviso that an employer may become liable for home healthcare services provided 14 days prior to receipt of a prescription (not at issue in this case). The second condition requires that an employer's liability for home healthcare services be subject to either Section 5307.1 or 5307.8 depending on whether the Official Medical Fee Schedule or Medicare Fee Schedule covers the home healthcare services. (Also not at issue in this case) (See Roque Neri Hernandez v. Geneva Staffing, et al., W.C.A.B. en banc 79 Cal Comp Cases 682)

2. Medical Treatment Is Subject to Utilization Review Pursuant to Labor Code § 4610. In the landmark holding by the California Supreme Court in State Comp. Insurance Fund v. Workers' Compensation Appeals Board (Sandhagen) (2008) 44 Cal.4th 230, 73 Cal. Comp. Cases 981, (hereinafter Sandhagen) decisions to delay, deny, modify

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 16 of 28 or approve medical treatment are mandatorily subject to the provisions of Labor Code § 4610 and not to any other resolution process. Prior to the passage of SB 863 disputes over utilization review determinations were resolved pursuant to Labor Code § 4062 which required the parties to utilize either an Agreed or Qualified Medical Examiner to address a contested medical dispute over treatment. Resolution of the disputes were achieved through litigation at the Workers' Compensation Appeals Board with the applicant having the burden of proof to show that medical treatment was reasonably required. Subsequent to the passage of SB 863, and effective 7/1/2013 for all existing cases,2 the dispute resolution process for utilization review determinations was altered. Pursuant to the dictates of that legislative enactment, disputes regarding utilization review determinations to approve, delay, deny or modify medical treatment were subject to appeal through the independent medical review process (IMR) under Labor Code §§ 4610.5 and 4610.6. Labor Code § 4610(e) provides as follows: "A utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section. Neither the employee nor the employer shall have any liability for medical treatment that is furnished without the authorization of the employer if the treatment is delayed, modified or denied by a utilization review decision unless the utilization review decision is overturned by independent medical review in accordance with this section."

In its en banc decision in Dubon v. World Restoration, Inc., State Compensation Insurance Fund (79 Cal. Comp. Cases 1298), the Workers' Compensation Appeals Board has held that utilization review decisions may only be considered invalid by the Workers' Compensation Appeals Board where the utilization review determination was not timely. However where the utilization review determination is timely, all other disputes

2 SB 863 specifically provided the provisions of the newly enacted statute were to apply to all pending cases regardless of the Date of Injury.

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 17 of 28 concerning utilization review must be resolved through independent medical review pursuant to Labor Code § 4610.5 and 46010.6. In doing so the W.C.A.B. reversed its prior decision which allowed review of utilization review determinations based upon multiple perceived defects. Upon further consideration the W.C.A.B. reversed itself and determined that the only utilization review decision which can be reviewed by the W.C.A.B. is one which is invalid based upon timeliness alone.3

B. THE DECISION OF THE WCJ IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS NOT IN COMPLIANCE WITH THE MEDICAL UTILIZATION TREATMENT SCHEDULES MANDATED PURSUANT TO LABOR CODE § 4604.5.

Labor Code § 4604.5 provides as follows: “ a) The recommended guidelines set forth in the medical treatment utilization schedule adopted by the administrative director pursuant to Section 5307.27 shall be presumptively correct on the extent and scope of medical treatment. Presumption is rebuttable and may controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines reasonably is required to cure or relieve the injured worker from the effects of his or her injury. The presumption created is one affecting the burden of proof.”

In his decision awarding applicant medical treatment the WCJ makes no mention of the medical treatment utilization schedule for home healthcare services. Reference to those provisions are contained in the utilization review report dated April 1, 2015 with citations to the chronic pain medical treatment guidelines. Those guidelines adopted by the administrative director in 2009. As noted by Dr. Enid Hoenig in his utilization

3 Timeliness of utilization review determinations is based upon both the statutory provisions of Labor Code § 4610 and the implementing regulations and Administrative Director Regulation 9792.9.1.

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 18 of 28 review determination of April 1, 2015 home healthcare services are “recommended only for otherwise recommended medical treatment for patients who are homebound, on a part time or “intermittent” basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing and using the bathroom when the is the only care needed. (CMS, 2004) Judge Hurley cites no other medical treatment guidelines or evidence-based standards in arriving at his determination to award applicant eight hours per day seven days per week of home healthcare assistance. The WCJ appears to rely upon testimony given by Dr. Tran in his aborted deposition (stopped before petitioner could complete their cross examination of the doctor) to identify eight hours per day as an appropriate level of services. However Dr. Tran does not cite in his deposition any evidence-based medical treatment guidelines. Indeed the injured worker in his testimony indicated that he and Dr. Tran had never even discussed the issue of his home healthcare services and the doctor would not have any directed knowledge as to the services applicant would require. Absent at least a reference to the medical treatment guidelines in consideration of the definition of medical treatment under the MTUS the decision of the trial judge to award medical care without reference to evidence-based medical treatment guidelines is simply not supported by substantial evidence. In Sandhagen cited supra as well as Duban cited supra both courts made it clear that where the W.C.A.B. awards medical treatments there must be substantial evidence to support the award of medical treatment. “The legislature amended Section 3202.5 to underscore that all parties, including the injured workers, must meet the evidentiary burden of proof on all issues by preponderance of the evidence. (Staps. 2004, Ch. 34 Section 9.) Accordingly, notwithstanding whatever an employer does (or does not do) an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 19 of 28 treatment request is consistent with the uniform guidelines (Section 4600(b)) or alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (Section 4604.5).” Sandhagen, cited supra 44 Cal.4th at 242

While it might be convenient for the WCJ to award home healthcare services at a level they had previously been provided there is no medical evidence that supports this decision as being consistent with either the medical treatment guidelines or based upon information which rebuts the medical treatment guidelines. Absent substantial evidence as to the services that are required pursuant to the official treatment guidelines there is no reasonable basis for awarding treatment outside of the medical treatment guidelines.

C: THE WCJ’s DECISION AND W.C.A.B.’s APPROVAL OF THAT DECISION ARE NOT CONSISTENT WITH THE W.C.A.B.’S EN BANC DECISION IN DUBON (cited supra)

Consistent with the holding in Dubon v. World Restoration (cited supra) the only defect which allows the W.C.A.B. to make a determination as to medical necessity is a determination that utilization review is not timely. In his decision awarding applicant the home health care services at $560.00 per week Judge Hurley did not make a finding that utilization review was completed in an untimely manner. Neither his opinion on decision nor his report and recommendation on reconsideration cite any material defect in utilization review consistent with the appeals board and bank decision which would allow a determination of medical necessity by a trial judge or the W.C.A.B.

In both Sandhagen (cited supra) and Dubon (cited supra) the issue of timeliness of utilization review was one for consideration by the W.C.A.B. Upon a finding by the W.C.A.B. that utilization review was not timely, jurisdiction to make determinations as to medical necessity under that decisional authority falls to the W.C.A.B. based upon substantial evidence. In this case the W.C.A.B. made no determination the utilization

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 20 of 28 review determination issued by petitioner’s UR vendor was untimely. Absent a finding of untimeliness there is no jurisdiction for the W.C.A.B. to resolve a dispute as to medical appropriateness of treatment. “…with the exception of timeliness, all of the requirements go to the validity of the medical decision or decision-making process. The sufficiency of the medical records provided, expertise of the reviewing physician and compliance with the MTUS are all questions for the medical professional. If an injured worker disputes a UR decision, Section 4610 mandates that it “shall be resolved in accordance with Section 4610.5, if applicable …” (Section 4610(g) (3)(A)(italics added); see also Section 4610(g)(3)(B).) Similarly, Sections 4610.5 and 4610.6, more thoroughly discussed above, specifically provide that where there is a dispute regarding a UR decision on “medical necessity” the dispute shall be resolved only by IMR. (Section 4610.5(a)(1) and (2), (b), (e), (k).) With the exception of timeliness all defects in the UR process can be remedied when appealed to IMR.”

Dubon v. World Restoration cited supra at 39 Cal. Comp. Cases 1309.

Curiously, the injured worker received an additional utilization review regarding authorization for home health care services which ultimately authorized continued services with the review to determine the appropriateness of medical treatment. (Exhibit O) Respondent contested that UR determination also at the W.C.A.B. and an Expedited Hearing was held shortly after the hearing that is the subject of this appeal. The date of that hearing was Sept 4, 2014. The same trial judge, with much of the same evidence admitted at the W.C.A.B. proceeding (See Exhibit H) determined he did not have jurisdiction to override the UR determination absent evidence that the UR determination was not timely. (Exhibit G). There is no explanation is either decision of the WCJ as to why on one occasion he is able to override a UR determination but in the other he is bound by the statutory structures of Labor Code § 4610 and the W.C.A.B. decision in Dubon (cited supra).

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 21 of 28 If the trial judge had adopted that decision as an appropriate level for providing services it would have been supported based upon a utilization review determination. However the judge did not adopt and order the utilization review determination which was made on July 16 in this decision. Such a ruling could have effectively provided the applicant with the ongoing services until a further review could have been completed to determine the appropriate level of services with determination as required by the legislature in SB863 being made by medical professionals rather than workers’ compensation judges.

E. THE WCJ’S REFUSAL TO ALLOW DEFENDANT TO COMPLETE DISCOVERY BY FINISHING THE DEPOSITION OF Dr. TRAN WAS AN ABUSE OF PROCESS.

As noted in the Statement of Facts above and documented in the Minutes of Hearing & Summary of Testimony (Exhibit F), the WCJ proceeded to hearing over Petitioner’s objection. Prior to the Applicant’s Declaration of Readiness to Proceed being filed, counsel for Petitioner had scheduled the deposition of Dr. Tran to be completed on 9/18/14 (Exhibit S). At the prior deposition conducted by counsel for respondent, the proceeding had been terminated by Dr. Tran due to time constraints without Petitioner being able to complete its questioning of Dr. Tran (Exhibit Q). At the Trial on August 14, 2014, the deposition of Dr. Tran, was admitted into evidence and ultimately relied upon by Judge Hurley in his Opinion on Decision to award the disputed medical treatment. The effect of the WCJ’s ruling was to allow Respondent to develop a record but prohibit Petitioner the same right. As noted by the Court of Appeal in the recent case of Ogden Entertainment Services v W.C.A.B., 80 Cal. Comp. Cases 1, the right to cross-examination of witnesses is a fundamental right:

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 22 of 28 “ We address in this case therefore nothing less than one of the fundamental guarantees of a fair trial or, as in this case, a fair hearing, for there is no doubt that the right of cross-examination is guaranteed to the parties in workers' compensation proceedings. (Pacific Employers Ins. Co. v. Industrial Accident Com. (1941) 47 Cal.App.2d 713, 715 [118 P.2d 848].) This right is not only guaranteed as a matter of constitutional law, it is specifically guaranteed by the Administrative Procedure Act in subdivision (b) of Government Code section 11513.11 As far as the purposes of cross-examination are concerned, one cannot improve on the explanation of the role of cross-examination given by Wigmore, quoted in People v. Whitehead (1952) 113 Cal.App.2d 43, 48–49 [247 P.2d 717], which we set forth in the margin.4 … When, as in this case, a party is completely denied the fundamental right to cross-examine the adverse party, there has not been a fair hearing. No one would quarrel with the proposition that a litigant is entitled to an unbiased judge or hearing officer and that a biased judge is the very definition of an unfair hearing. Cross-examination of a witness, and especially the adverse party, is similarly part and parcel of a fair hearing. The high station which the right of confrontation occupies in our jurisprudence admits of no other conclusion. There is therefore a case to be made that the error here was reversible per se”

Ogden Entertainment Services v W.C.A.B., 80 Cal. Comp. Cases at 2, 3 Defendant in the matter was unable to complete its cross-examination of an obviously key witness. In light of the WCJ’s reliance on the testimony of Dr. Tran, the failure to allow defendant an opportunity to complete its cross-examination of the doctor

4 “‘The remaining and qualifying circumstances of the subject of testimony will probably remain suppressed or undisclosed, not merely because the witness frequently is a partisan, but also and chiefly because his testimony is commonly given only by way of answers to specific interrogatories … and the counsel producing him will usually ask for nothing but the facts favorable to his party. If nothing more were done to unveil all the facts known to this witness, his testimony (for all that we could surmise) might present half-truths only. Someone must probe for the possible (and usual) remainder. The best person to do this is the one most vitally interested, namely, the opponent. Cross-examination, then, i.e. further examination by the opponent, has for its first utility the extraction of the remaining qualifying circumstances, if any, known to the witness, but hitherto undisclosed by him.’ (Wigmore, vol. V, [3d ed.] § 1368, p. 33.)” The citation now is to 5 Wigmore Evidence (Chadbourn ed. 1974) § 1368, p. 36.

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 23 of 28 can only be considered prejudicial. As pointed out it its Petition for Reconsideration, there were numerous inconsistencies in the reporting for Dr. Tran and the information provided by applicant, including the testimony by applicant that he had not discussed his home health needs with Dr. Tran,that suggest cross-examination was a necessary entitlement for Petitioner. As the Court in Ogden, cited supra, opined: “ The appeals board's claim that its decision on permanent disability is supported by substantial evidence is beside the point. The appeals board exceeded its powers when it adopted a decision as its own that was flawed by a denial of due process. Because the appeals board exceeded its powers, its decision must be set aside. (Lab. Code, § 5952, subd. (a).)”

Ogden Entertainment Services v W.C.A.B., 80 Cal. Comp. Cases at 8

The same can be said of the decision in this case.

CONCLUSION Based upon the above arguments petitioner would assert the W.C.A.B. has clearly overstepped the bounds of its authority in issuing a decision by a trial judge and adopting that decision by the W.C.A.B. to award medical treatment where there is no specified identified statutory authorized defect in the utilization review determination issued by defendant. Given the holding in Dubon (cited supra) that the only defect in utilization review which is reviewable by the W.C.A.B. is where utilization review was not timely, there is no jurisdiction to make medical determinations concerning the reasonableness and necessity for medical treatment. Judge Hurley specifically did not make a finding that utilization review was not timely in either his original decision or in his report for recommendation on reconsideration. Absent a finding that utilization review was not timely the applicant’s only appeal right was through Independent Medical Review (which was not pursued) as directed by statute and outlined by the W.C.A.B. in Dubon (cited supra).

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 24 of 28 Petitioner would further assert that the decision of the trial judge to award services at 56 hours per week is not supported by substantial evidence as there are no medical treatment guidelines or evidence-based medicine reviewed or commented upon by the judge that identified that level of service as being medically appropriate. The WCJ’s refusal to allow defendant/Respondent to complete its cross-examination of Dr. Tran in spited of timely objection to proceeding and having already scheduled a proceeding to complete the doctor’s testimony prior to the injured worker’s attorney filing a request for hearing is a clear abuse of process. WHEREFORE petitioner requests the decision of the Workers' Compensation Appeals Board awarding medical treatment be reversed, that the matter be remanded to the W.C.A.B. for further proceedings and for such other and further relief as may be deemed proper and just. Respectfully submitted,

SHAW, JACOBSMEYER, CRAIN & CLAFFEY Dated: 2/19/15

______RICHARD M. JACOBSMEYER Attorneys for Defendant

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 25 of 28 IX VERIFICATION AND WORD COUNT I, Richard M. Jacobsmeyer, swear that I have read the within Petition for Writ of

Review and know the contents thereof; that the within brief contains 5471 words, based on the automated word count of the computer word-processing program; that I am informed and believe that the facts and law stated therein are true and on that ground allege that such matters are true; that I make such verification because the officers of

Respondent are absent from the County where my office is located and are unable to verify the petition, and because as attorney for Respondent I am more familiar with such facts and law than are the officers.

Sworn and executed this February 19, 2015, at Oakland, California.

Respectfully submitted,

SHAW, JACOBSMEYER, CRAIN & CLAFFEY

______RICHARD M. JACOBSMEYER Attorneys for Defendant

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 26 of 28 RE: ISMAEL MIRAMONTES v. LIONS RAISINS, PSI; ADMINISTERED BY AIMS WCAB CASE NO: ADJ2777203 CLAIM NO: A250000889 DOI: 05/30/2006 SJCC FILE NO: 3400-16043

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ALAMEDA I am employed in the County of Alameda, State of California. I am over the age of 18, and not a party to the within action. My business address is: Shaw, Jacobsmeyer, Crain & Claffey, 475 – 14th Street, Suite 850, Oakland, CA 94612.

On February 19, 2015, I served the foregoing document(s) described as: PETITION FOR WRIT OF REVIEW on the interested parties in this action by placing the original, or a true copy thereof, enclosed in a sealed envelope addressed as follows:

AIMS WCAB P.O. BOX 28100 RECONSIDERATION UNIT FRESNO, CA 93729 OFFICE OF COMMISSIONERS PETERSEN LAW OFFICES P.O. BOX 429459 519 SOUTH SCHOOL STREET SAN FRANCISCO CA 94142-9459 P.O. BOX 1468 UKIAH, CA 95482

ALAN KIMELMAN, MD P.O. BOX 488 ST DISTRICT COURT OF APPEAL KENTFIELD CA 94914 350 MCALLISTER ST

Lions Raisins v Workers’ Compensation Appeals Board, Ismael Miramontes Petition for Writ of Review 27 of 28 I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully pre-paid at Oakland, California, in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing affidavit. I declare, under penalty of perjury, under the laws of the State of California, that the above is true and correct. Executed on February 19, 2015, at Oakland, California.

DEREK STILES ______(Type/Handwrite Name) (Signature)