Ramirez, Mario, Applicant v. ESG PERSONNEL LEASING, INC., LSC LARSEN’S OXNARD GRILL; SECURITY NATIONAL INSURANCE COMPANY, administered by AMTRUST NORTH AMERICA, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
MARIO RAMIREZ, Applicant
vs.
ESG PERSONNEL LEASING, INC., LSC LARSEN’S OXNARD GRILL;
SECURITY NATIONAL INSURANCE COMPANY,
administered by AMTRUST NORTH AMERICA, Defendants
Adjudication Number: ADJ15193432
Santa Barbara District Office
OPINION AND ORDER
DENYING PETITION FOR
RECONSIDERATION
Defendant seeks reconsideration of the September 2, 2025 Expedited Finding and Orders
(F&O), wherein the workers’ compensation administrative law judge (WCJ) found that applicant,
while employed as a cook/restaurant worker on June 30, 2021, sustained industrial injury. The
WCJ found that the May 7, 2025 utilization review (UR) denial of a spinal cord stimulator (SCS)
trial was invalid, and that the treatment as requested by the primary treating physician (PTP) was
medically reasonable and necessary.
Defendant contends that the UR denial was timely because there was no material change
in fact necessitating a “re-review” by UR; that the reporting of the PTP misapplies relevant medical
guidelines and does not constitute substantial evidence to support an SCS trial; and that if there is
a basis to develop the record, that an independent, impartial physician be designated per Labor
Code1 section 5701.
We have not received an answer from any party. The WCJ prepared a Report and
Recommendation on Petition for Reconsideration (Report), recommending that the Petition be
denied.
1 All further references are to the Labor Code unless otherwise noted.

2
We have considered the Petition, and the contents of the Report, and we have reviewed the
record in this matter. For the reasons discussed below, we will deny reconsideration.
FACTS
Applicant sustained injury to his low back while employed as a cook/restaurant worker by
defendant Larsen’s Oxnard Grill on June 30, 2021. The parties have selected Steven Brourman,
M.D., as the orthopedic Qualified Medical Evaluator (QME). Applicant’s PTP is Michael Kenly,
M.D.
On April 11, 2025, Dr. Kenly submitted an RFA for SCS trial under fluoroscopic guidance.
(Ex. Y2, UR Determination, dated April 17, 2025, at p. 2.)
On April 17, 2025, defendant’s Utilization Review provider non-certified the request. The
UR physician observed, in relevant part:
A prior review was non-certified due to previously completed psychiatric
evaluation were not in the available history to support this request and as such,
the medical necessity of this request is not established on 03/26/2025 under
review 6865858. Although, they recently completed psychological evaluation
and support psychological readiness for the procedure. In this case, the claimant
does have radicular symptoms and has undergone extensive conservative and
surgical 	treatments, 	including 	multiple 	spine surgeries, 	physical 	therapy,
acupuncture, chiropractic care, and epidural steroid injections with >50% relief
which they expressed interest in repeating the epidural injection, which
previously provided significant relief, suggesting a potentially viable ongoing
treatment path without proceeding to an invasive procedure. Given that the
claimant has not exhausted all conservative treatment options, including a repeat
epidural injection that previously provided significant relief. The request is not
medically necessary at this time and there are no extenuating circumstances or
compelling reasons to deviate from the guidelines.
(Id. at p. 4.)
On April 29, 2025, Dr. Kenly issued an interim PR-2 Report describing applicant as
suffering from “severe discogenic disease with modic endplate changes, type 2.” (Ex. 2, Report of
Michael Kenly, M.D., dated April 29, 2025 at p. 1.) Applicant’s medical history was positive for
a microlumbar discectomy at L3-4 in October, 2022, with a recovery complicated by a dural leak,
two subsequent surgeries to remediate the condition and the development of L4-L5 discitis. (Id. at
p. 2.) Applicant subsequently underwent a fourth surgical intervention involving microlumbar
discectomy in February, 2024. Diagnoses included lumbar intervertebral disc displacement

3
without myelopathy; lumbar intervertebral disc degeneration; lumbar radiculopathy; and infection
of intervertebral disc, pyogenic. (Id. at p. 3.) The stated treatment plan observes that applicant has
obtained “[i]nadequate relief with conservative care including NSAIDs and physical therapy,” and
that applicant is a “candidate for spinal cord stimulator trial given ongoing severe back and leg
pain status post multiple surgeries.” The report discusses the medical necessity of an SCS trial and
cites the MTUS/ACOEM guidelines. (Id. at p. 4.) The report observes that applicant has
“completed the psych clearance for spinal cord stimulator trial [and] would like to proceed.” (Ibid.)
The report further states, “NEW INFORMATION, SCS trial has been denied stating that he needs
to try another ESI [epidural steroid injection]. For clarity, he just had the repeat ESI on 4/7/25. No
long lasting relief.” (Ibid.) The treatment plan indicates the provider will seek authorization for
continued medication management and “spinal cord stimulator trial – NEW INFORMATION.”
(Id. at p. 5.)
On May 5, 2025, physician assistant Victoria Lindsey from Dr. Kenly’s office submitted a
DWC Form RFA to defendant, indicating “Resubmission – Change in Material Fact.” (Ex. 1, RFA
by Victoria Lindsey, PA-C, May 5, 2025.) The RFA requested, in relevant part, “spinal cord
stimulator trial NEW INFORMATION with flouroscopic (sic) guidance.” (Ibid.)
On May 7, 2025, defendant sent a letter to Dr. Kenly entitled, “NOTICE: Repeat Request
for Authorization.” (Ex. Y1, Amtrust UR Decision, dated May 7, 2025, at p. 2.) The letter
acknowledges receipt of the May 5, 2025 RFA, stating, “[t]his is a courtesy letter to inform you
that pursuant to §9792.9.l(h) the above stated treatment(s) will not be reviewed for medical
necessity at this time because 1) there has been a prior review with a determination to deny or
modify which shall remain in effect for 12 months from the date of the prior decision 2) the
recommended treatment is from the same physician or another physician within the same practice
group and 3) there has been no documented change in the fact’s (sic) material to the original review
decision.” (Ibid.)
On June 19, 2025, the parties proceeded to expedited trial and framed for decision in
relevant part the issue of “whether the UR denial, dated May 7, 2025, is invalid or untimely,” and
the reasonableness and necessity of the requested treatment. (Minutes of Hearing (Minutes), dated
June 19, 2025, at p. 2:20.) The parties submitted the issue for decision on the documentary record
the same day.

4
On July 25, 2025, the WCJ issued Findings and Orders, determining in relevant part that
the UR denial of May 7, 2025 was invalid, and that the record required development as to the
medical necessity of the underlying treatment. (Findings and Orders, dated July 25, 2025, Findings
of Fact Nos. 2 & 5.)
On August 19, 2025, applicant filed a petition seeking reconsideration of the July 25, 2025
decision.
On September 2, 2025, the WCJ issued an order setting aside the July 25, 2025 decision,
and resubmitting the matter for decision.
On the same day the WCJ issued the instant F&O, determining in relevant part that the
May 7, 2025 UR denial was untimely. (Finding of Fact No. 3.) The WCJ further determined that
although “the Primary Treating Physician (PTP) reports contained a procedural deficiency by not
attaching a cited study as required by Title 8, California Code of Regulations (CCR), §9792.21.1
…. this deficiency is found to be de minimis.” (Finding of Fact No. 4.) The WCJ “found the
medical reasonableness and necessity of the spinal cord stimulator (SCS) trial, as requested by
Dr. Michael Kenly, M.D., is established based on the complete medical record.” (Finding of Fact
No. 6.) Accordingly, the WCJ ordered defendant to provide authorize the requested SCS treatment.
(Order No. 1.)
Defendant’s Petition first contends that the April 29, 2025 reporting of Dr. Kenly cited
incomplete sections of the Medical Treatment Utilization Schedule (MTUS) guidelines and failed
to comply with Administrative Director (AD) Rule 9792.21.1(b)(1)(B) (Cal. Code Regs., tit. 8,
§ 9792.21.1(b)(1)(B)), which requires the attachment of relevant studies when attempting to rebut
the MTUS. (Petition, at p. 3:16.) Defendant further contends that the April 29, 2025 report of Dr.
Kenly does not describe a “material change in fact necessitating a re-review by UR.” (Id. at p. 6:1.)
The WCJ’s Report first addresses defendant’s contentions regarding the substantiality of
Dr. Kenly’s reporting, acknowledging defendant’s argument that the PTP “failed to provide a copy
of a Canadian study he referenced to rebut the MTUS, and he selectively quoted the guidelines,
omitting language that the SCS is not recommended and lacks evidence of efficacy.” (Report, at
p. 3.) The WCJ observes, however, that the reporting of Dr. Kenly substantively complies with the
MTUS requirements for SCS trial. (Ibid.) With respect to the validity of defendant’s May 7, 2025
denial of authorization letter, the WCJ observes:

5
Defendant contends the May 7, 2025, UR denial was timely because there was
no material change in fact presented in the PTP’s April 29, 2025 report
(Defendant’s Petition for Reconsideration, p. 3). Defendant argues the report is
a “mirror” of the prior report of April 11, 2025, and that the new EMG/NCV
studies were not factors in the PTP’s recommendation (Defendant’s Petition for
Reconsideration, pp. 5-7). However, the May 5, 2025, RFA explicitly checked
the box for “Resubmission – Change in Material Facts” and was supported by
the April 29, 2025, PTP report which noted, “NEW INFORMATION” as a
reason for the visit (Exhibit A-1, RFA, p. 2; Exhibit A-2, PTP Report 4/29/2025,
p. 5). The UR response on May 7, 2025, improperly invoked the 12-month rule
and failed to address the new medical information, rendering the denial invalid
and untimely.
(Ibid.)
Accordingly, the WCJ recommends we deny reconsideration. (Id. at p. 4.)
DISCUSSION
I.
Former section 5909 provided that a petition for reconsideration was deemed denied unless
the Appeals Board acted on the petition within 60 days from the date of filing. 	(Lab. Code,
§ 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
(a) 	A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits a
case to the appeals board.
(b)
(1) 	When a trial judge transmits a case to the appeals board, the trial
judge shall provide notice to the parties of the case and the appeals board.
(2) 	For purposes of paragraph (1), service of the accompanying report,
pursuant to subdivision (b) of Section 5900, shall constitute providing
notice.
Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in
the Electronic Adjudication Management System (EAMS). 	Specifically, in Case Events, under
Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase
“The case is sent to the Recon board.”

6
Here, according to Events, the case was transmitted to the Appeals Board on October 1,
2025, and 60 days from the date of transmission is Sunday, November 30, 2025. The next business
day that is 60 days from the date of transmission is Monday, December 1, 2025. (See Cal. Code
Regs., tit. 8, § 10600(b).)2 This decision is issued by or on Monday, December 1, 2025, so that we
have timely acted on the petition as required by section 5909(a).
Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. Section 5909(b)(2) provides that service of the Report and Recommendation shall
be notice of transmission.
Here, according to the proof of service for the Report and Recommendation by the workers’
compensation administrative law judge, the Report was served on October 1, 2025, and the case
was transmitted to the Appeals Board on October 1, 2025. Service of the Report and transmission
of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties
were provided with the notice of transmission required by section 5909(b)(1) because service of
the Report in compliance with section 5909(b)(2) provided them with actual notice as to the
commencement of the 60-day period on October 1, 2025.
II.
Defendant contends its April 17, 2025 UR decision non-certifying the request for a SCS
trial was valid and precludes additional requests for the same treatment for a period of 12 months
absent a change in the facts material to the original UR decision denying or modifying a treatment
request.
Section 4610 provides for the resolution of medical treatment disputes through Utilization
Review. Section 4610 requires that “[e]ach employer shall establish a utilization review process
in compliance with this section, either directly or through its insurer or an entity with which an
employer or insurer contracts for these services,” defining utilization review as “functions that
2 WCAB Rule 10600(b) (Cal. Code Regs., tit. 8, § 10600(b)) states that:
Unless otherwise provided by law, if the last day for exercising or performing any right or duty to act or
respond falls on a weekend, or on a holiday for which the offices of the Workers’ Compensation Appeals
Board are closed, the act or response may be performed or exercised upon the next business day.

7
prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based
in whole or in part on medical necessity to cure and relieve, treatment recommendations by
physicians...” (Lab. Code, § 4610(a), (g); State Compensation Insurance Fund v. Workers’ Comp.
Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981].)
However, section 4604 continues to vest with the WCAB the authority to resolve non-
medical disputes arising out of the utilization review process. Section 4604 provides that:
“[c]ontroversies between employer and employee arising under this chapter shall be determined
by the appeals board, upon the request of either party, except as otherwise provided by Section
4610.5.” (Dubon v. World Restoration (2014) (79 Cal.Comp.Cases 1298 [2014 Cal. Wrk. Comp.
LEXIS 131] (Appeals Bd. en banc).)
Additionally, section 4610(k) provides:
A utilization review decision to modify or deny a treatment recommendation
shall remain effective for 12 months from the date of the decision without further
action by the employer with regard to a further recommendation by the same
physician, or another physician within the requesting physician’s practice group,
for the same treatment unless the further recommendation is supported by a
documented change in the facts material to the basis of the utilization review
decision.
(Lab. Code, § 4610(k).)
Thus, while a timely utilization review determination is generally valid for one year, a
treatment request submitted by a physician indicating documented change in facts material to the
basis of the original review requires further action by the claims administrator. (Lab. Code, §
4610(k); see also Cal. Code Regs., tit. 8, § 9792.9.1(h).)
Here, a March 26, 2025 UR determination denied the SCS trial because applicant had not
completed a psychiatric evaluation relevant to the proposed course of treatment. (Ex. Y2, UR
Determination, dated April 17, 2025, at p. 4.) However, the April 17, 2025 UR determination
acknowledged 	that 	applicant 	had 	completed 	the 	necessary 	evaluation 	which 	supported
“psychological readiness” for the procedure. (Ibid.) It was further noted that applicant had
“radicular symptoms and has undergone extensive conservative and surgical treatments, including
multiple spine surgeries, physical therapy, acupuncture, chiropractic care, and epidural steroid
injections…” (Ibid.) The reviewing physician noted, however, that exhaustion of conservative
measures was required, and that applicant had previously experienced significant relief from

8
epidural steroid injections, “suggesting a potentially viable ongoing treatment path without
proceeding to an invasive procedure.” (Ibid.) Accordingly, the “claimant has not exhausted all
conservative treatment options, including a repeat epidural injection that previously provided
significant relief,” and “[t]he request is not medically necessary at this time.” In addition, the UR
physician determined “there are no extenuating circumstances or compelling reasons to deviate
from the guidelines.” (Ibid.)
PTP Dr. Kenly’s April 29, 2025 report responded to the adverse UR determination,
observing that applicant had successfully completed the psychiatric screening necessary to verify
psychological readiness for the SCS procedure. (Ex. 2, Report of Michael Kenly, M.D., dated April
29, 2025 at p. 3.) Dr. Kenly’s report further states, “NEW INFORMATION, SCS trial has been
denied stating that [applicant] needs to try another ESI [epidural steroid injection]. For clarity, he
just had the repeat ESI on 4/7/25. No long lasting relief.” (Ibid.) The clarification that applicant’s
April 7, 2025 repeat ESI provided “no long lasting relief” directly addressed the facts material to
the April 17, 2025 UR decision. (Ex. Y2, Utilization Review Determination, dated April 17, 2025,
at p. 4.)
Defendant declined to submit Dr. Kenly’s May 5, 2025 RFA for UR, citing the April 17,
2025 non-certification, and stating that the May 5, 2025 RFA contained no change in the facts
material to the prior UR decision. However, in our view the April 29, 2025 report clearly sets forth
a change in the facts material to the prior UR decision, by demonstrating that the epidural injections
which had previously provided long lasting relief were no longer efficacious and that applicant
had effectively exhausted conservative treatment modalities. Moreover, Dr. Kenly’s May 5, 2025
RFA clearly states that the resubmission is based on a “Change in Material Fact.” (Ex. 1, RFA by
Victoria Lindsey, PA-C, May 5, 2025.)
On this record, we concur with the WCJ’s determination that the May 5, 2025 RFA and
April 29, 2025 interim reporting substantiated a change in the facts material to the April 17, 2025
UR decision. The documented change in the facts material to the basis of the April 17, 2025 UR
decision obviated the 12-month period otherwise applicable under section 4610(k) and AD Rule
9792.9.1(h). 	(See 	Smith 	v. 	Marin 	General 	Hospital 	(January 	31, 	2020, 	ADJ7148358,
ADJ7148195) [2020 Cal. Wrk. Comp. P.D. LEXIS 20] [worsening in applicant’s condition was
change in fact material to previously denied UR decision warranting new UR]; Wyant v. American
Med. Response (December 22, 2017, ADJ10034122) [2017 Cal. Wrk. Comp. P.D. LEXIS 587]

9
[resubmission of RFA with additional information warranted new UR notwithstanding prior UR
non-certification]; Servin v. Cerritos Lexus (September 12, 2022, ADJ11423609) [2022 Cal. Wrk.
Comp. P.D. LEXIS 261] [MRI submission constituted change in circumstance sufficient to trigger
UR notwithstanding prior UR non-certification]; cf. Shelven v. Ralphs Grocery Co. (October 29,
2020, ADJ11017618) [2020 Cal. Wrk. Comp. P.D. LEXIS 343] [defendant not required to
resubmit RFA to UR when RFA requests same treatment denied less than 12 months earlier];
Holguin v. First United Methodist (May 31, 2022, ADJ2529637 (AHM 0145051)) [2022 Cal. Wrk.
Comp. P.D. LEXIS 154] [treating physician RFA did not demonstrate change in facts material to
prior UR noncertification which remained in effect for 12 months].)
Accordingly, defendant’s May 7, 2025 decision declining to authorize the requested
treatment under the aegis of section 4610(k) and AD Rule 9792.9.1(h) was invalid. Defendant’s
failure to authorize the requested treatment or to refer the question of medical necessity to UR
under section 4610 resulted in conferral of WCAB jurisdiction over the dispute. (Lab. Code,
§§ 4604; 4610; (Dubon, supra, 79 Cal.Comp.Cases 1298.)
And in this respect, we agree with the WCJ’s analysis that the record substantiates the
medical necessity of the requested treatment. The WCJ’s Report observes:
The September 2, 2025, Opinion on Decision found that while the PTP did not
attach the cited study, this procedural deficiency was de minimus, and did not
negate the substantive weight of the medical evidence. The PTP’s report was
deemed substantial medical evidence based on Applicant’s extensive history of
four failed lumbar surgeries, failed conservative care (Exhibit A-2, PR-2,
4/29/2025, p. 4), psychological clearance for the procedure (Exhibit A-3, Psych
Consult by Cindy Tafoya, p. 3), and new objective findings from the authorized
April 25, 2025, EMG/NCV study, which demonstrated radiculopathy (Exhibit
A-7, RFA 2/27/2025, p. 8). This finding of radiculopathy satisfies a key
selection criterion for an SCS under the MTUS guidelines (Exhibit B, DIR-
MTUS-Low 	Back 	Disorder, 	p. 	181). 	Given 	this 	comprehensive 	record,
Applicant met his burden of proof for the medical necessity of the SCS trial.
(Report, at p. 3.)
We also observe that the applicant has met the specified criteria under the MTUS cited in
each of defendant’s prior UR decisions, to wit, the psychological screening cited in the March 26,
2025 UR determination, as well as the exhaustion of conservative remedies cited in the April 17,
2025 UR determination. (Ex. Y2, UR Determination, dated April 17, 2025, at p. 4.) The April 29,
2025 report of Dr. Kenly notes that applicant had undergone psychological screening which

10
supported the requested SCS trial, and that the interim April 7, 2025 epidural steroid injections
were no longer efficacious, as cited in the April 17, 2025 UR determination. (Ex. 2, Report of
Michael Kenly, M.D., dated April 29, 2025 at p. 1.) Based on the successful psychiatric screening
and exhaustion of conservative modalities described in the PTP’s April 29, 2025 report and May
5, 2025 RFA, we agree with the WCJ that the reporting establishes the medical necessity of the
requested treatment.
Defendant further contends the reporting of Dr. Kenly does not append the information
required under AD Rule 9792.21.1(b)(1)(B) (Cal Code Regs., tit. 8, § 9792.21.1(b)(1)(B))
necessary to rebut the presumptively correct MTUS. (Petition, at p. 3:16.) The rule provides in
relevant part the Medical Evidence Search Sequence for treating physicians requesting treatment
for a condition that is addressed by the MTUS where the physician seeks to rebut the MTUS (subd.
(b)(1)(B)), or in the alternative, the search sequence relevant to medical conditions not addressed
by the MTUS (subd. (b)(1)(A)). Here, we note in the first instance that the requested treatment
modality, i.e. the SCS trial, is addressed in the MTUS (see Ex. B, MTUS, Low Back Disorder, pp.
180-182). In our view, however, the PTP is not seeking to rebut the MTUS’ presumption of
correctness. Rather, the RFA and reporting of Dr. Kenly seek to establish that the facts of
applicant’s condition meet the MTUS requirements necessary to a determination of medical
necessity for SCS trial, e.g., as indicated in patients with “predominant radicular pain, unamenable
to surgery, with inadequate function after complying with functional restoration program
components for at least 6 months who wishes to seek potential approval from a worker's
compensation insurer.” (Id. at p. 181.) We therefore decline to disturb the WCJ’s determination
that the reporting of Dr. Kenly constitutes substantial evidence. (Finding of Fact No. 5.)
In summary and following our review of the entire record occasioned by defendant’s
Petition, we conclude that the record substantiates a change in the facts material to the April 17,
2025 UR decision, such that defendant was obligated to authorize applicant’s May 5, 2025 request
or submit the RFA for UR. Because defendant declined to do so, the WCJ properly determined
that the requested medical treatment was both reasonable and medically necessary under
appropriate medical treatment guidelines. We will deny defendant’s Petition, accordingly.

11
For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ KATHERINE WILLIAMS DODD, COMMISSIONER
I CONCUR,
/s/ KATHERINE A. ZALEWSKI, CHAIR
/s/ JOSEPH V. CAPURRO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
November 26, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
MARIO RAMIREZ
WOLFF-WALKER LAW
LAW OFFICE OF NATALIE KAPLAN
SAR/abs
I certify that I affixed the official seal of the
Workers’ Compensation Appeals Board to this
original decision on this date. 	abs