Aurigue, Cesar, Applicant v. UNITED AIRLINES; permissibly self-insured, administered by SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
CESAR AURIGUE, Applicant
vs.
UNITED AIRLINES; permissibly self-insured,
administered by SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Defendants
Adjudication Number: ADJ12640335
San Francisco District Office
OPINION AND ORDER
GRANTING PETITION FOR
RECONSIDERATION
AND DECISION AFTER
RECONSIDERATION
Applicant filed a Petition for Reconsideration (Petition) of the Findings of Fact (Findings)
dated September 3, 2025, wherein the workers’ compensation administrative law judge (WCJ)
found in part that when defendant requested additional information, defendant issued a timely
decision denying a Request for Authorization (RFA) for a functional restoration program.
The Petition asserts that the defendant’s decision is untimely.
We did not receive an Answer from defendant.
The WCJ’s Report and Recommendation (Report) recommends the Petition be denied.
We have considered the allegations of the Petition and the contents of the Report of the
WCJ with respect thereto. After review of the record and for the reasons discussed below, we will
grant reconsideration, rescind the Findings and substitute a new Findings, which finds that the
RFA denial was untimely, and defers the issue of whether the requested treatment was reasonable
and necessary. We will return the case to the WCJ for further proceedings consistent with this
opinion, including a decision on the issue of the requested treatment.

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I.
Former Labor Code section 59091 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.
(Former 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.
(Lab. Code, § 5909.)
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. This time limit is extended to the next
business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, §
10600.) 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.”
Here, according to Events the case was transmitted to the Appeals Board on September 29,
2025, and 60 days from the date of transmission is Friday, November 28, 2025. Friday, November
28, 2025, is the day after Thanksgiving and a State holiday. The following two days, Saturday and
Sunday, are a weekend, meaning the time to act is extended to Monday, December 1, 2025. This
decision issued by or on 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
1 Unless otherwise stated, all further statutory references are to the Labor Code.

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act on a petition. Section 5909(b)(2) provides that service of the Report shall be notice of
transmission.
According to the proof of service, the Report was served on September 29, 2025, and the
case was transmitted to the Appeals Board on September 29, 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 September 29, 2025.
II.
As found by the WCJ, applicant while employed on August 19, 2019, as a ramp agent,
sustained injury arising out of and occurring in the course of his employment, to his left ankle, low
back, right shoulder, and left hip.
On April 10, 2024, Leslie H. Kim, M.D., issued an Orthopaedic Agreed Medical
Evaluation Report. Dr. Kim reported applicant “sustained acute left foot trauma in the course of
his usual ramp service work” that “resulted in a comminuted displaced calcaneus fracture and
minimally displaced cuboid fracture. Appropriate surgical treatment with open reduction and
internal fixation was performed.” “[T]he primary left foot injury was compounded by secondary
right shoulder and "hip" pain. Concurrent back pain is also recorded in the treatment records.”
“The treating physicians attributed these additional symptoms to the patient's altered gait with
limited weightbearing on the left side and the use of crutches.” (Exhibit B, Leslie H. Kim, M.D.,
page 39.)
In a July 31, 2024, supplemental report Dr. Kim reviewed a lumbar MRI. “Absent a history
of a specific spine injury, abnormal mechanical loading of the lumbar spine due to the patient's
abnormal gait and posture after foot injury and surgery is implicated as the most likely cause of
current spine disability.” (Exhibit A, July 31, 2024, Leslie H. Kim, M.D., page 3.)
It appears at some point the applicant came under the care of Dr. Babak Jamasbi as primary
care physician. On March 19, 2025, Dr. Jamasbi submitted an RFA for “CARF Accredited
Northern California Functional Restoration Program.” “This is a formal request for 80 hours of
initial trial at the CARF Accredited NCFRP at $475/hr. Attached to the RFA is the Initial
Evaluation report requesting 80 hours of the program.” The request notes:

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NCFRP is a CARF ACCREDITED continuous course interdisciplinary treatment
Functional Restoration Program administered with an initial trial of 80 hours and
not to exceed a duration of 160 hours as supported by the MTUS/ODG.
According to the MTUS Guidelines total treatment duration should generally not
exceed 4 weeks (20 full days) or the equivalent in part day sessions. NCFRP is a
continuous course interdisciplinary treatment program designed to be consistent
with the MTUS recommendations administered in 160 hours or 30 part-day
sessions over the duration of 6 weeks.
(Exhibit 1, March 19, 2025, RFA, page 1, emphasis in the original.)
Also attached to the request is a March 6, 2025, Initial Evaluation and Interdisciplinary
Conference report consisting of fourteen pages, (Exhibit 1, March 19, 2025, RFA, PDF pages 3-
16,) a March 6, 2025, Initial Evaluation Medical Report by Timothy S. Lo, M.D., M.P.H.,
consisting of six pages, a March 6, 2025, Initial Evaluation Psychology Report, by Samantha L
Jackson, Psy.D., six pages, and a March 6, 2025, Initial Evaluation Musculoskeletal Report, Oliver
Mok, PT, MSPT, DPT, consisting of three pages, with an additional two page NCFRP Grid Report
attachment. (Exhibit 1, March 19, 2025, RFA, PDF pages 17-33.)
On March 26, 2025, defendant issued a request for additional information, which stated in
relevant part that: “Date request was first received by United Continental Holdings, Inc.: Monday,
March 24, 2025.” “Date request received by Genex: Monday, March 24, 2025.” “Please indicate
how the 80 hours will be allocated. Please list the specific techniques and the functional deficits
that will be addressed and the hours per technique.” (Joint Exhibit 1, PDF page 1.)
In response on March 26, 2025, (Facsimile header date of March 27, 2025), there is a
Northern California Functional Restoration Program (NCFRP) fax cover sheet, with attached one
page NCFRP “Program Description.” (Joint Exhibit 2, pages 1-2.)
On April 1, 2025, defendant again issued a request for additional information stating in
relevant part that “the original question was not answered. Please indicate specific details for the
claimant. Please indicate the therapies that will be requested and how many hours per therapy
being requested [sic]. Then please indicated the functional deficits that will be addressed with
those therapies.” (Exhibit C.)
On April 7, 2025, defendant issued a letter titled “Recommendation: Conditionally Non-
Certify.” The letter states “we are conditionally denying this review due to lack of information. If

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the requesting provider does submit the requested information in the future, we will reconsider the
request.” (Exhibit D, PDF page 2.)
The parties proceeded to expedited trial at which evidence was admitted, and no testimony
was taken. (Minutes of Expedited Hearing (MOH), June 25, 2025.) Issues submitted for decision
consisted of “[w]hether there was a timely UR [utilization review] decision to the 3/19/2025 Dr.
Jamasbi RFA for Functional Restoration Program,” and “[w]as the treatment requested in the
3/19/2025 Dr. Jamasbi RFA medically necessary to cure or relieve the effects of the industrial
injury?” All other issues were deferred. (MOH, June 25, 2025, page 2, lines 19-26.)
On September 3, 2025, the WCJ issued a finding that there was a timely utilization review
(UR) decision. (Findings, page 1.) The WCJ explained defendant’s March 26, 2025, request for
additional information was a timely UR decision. (Findings, Opinion on Decision, pages 7-8.)
Applicant seeks reconsideration of the finding that defendant issued a timely decision
denying the RFA for a functional restoration program.
III.
Section 4600 requires the employer to provide reasonable medical treatment to cure or
relieve from the effects of the industrial injury. (Lab. Code, § 4600(a).) An employers' review of
an employees' medical treatment requests are governed solely by UR. (Lab. Code, § 4610(g); State
Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 236 [73
Cal.Comp.Cases 981].) Section 4610 provides time limits within which a UR decision must be
made by the employer. (Lab. Code, § 4610.) These time limits are mandatory.
In Dubon v. World Restoration, Inc. (Dubon II) (2014) 79 Cal.Comp.Cases 1298 (Appeals
Board en banc), the Appeals Board held that it has jurisdiction to determine whether a UR decision
is timely. If a UR decision is untimely, the determination of medical necessity for the treatment
requested may be made by the Appeals Board. (Dubon II, supra, pages 1299, 1300.) If the UR
decision is timely, the Appeals Board has no jurisdiction to address disputes regarding the UR
because “[a]ll other disputes regarding a UR decision must be resolved by IMR.” (Dubon II, supra,
page 1299.)
Pursuant to section 4610 only a licensed physician may “modify or deny requests for
authorization of medical treatment for reasons of medical necessity to cure and relieve or due to

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incomplete 	or 	insufficient 	information 	under 	subdivisions 	(i) 	and 	(j).” 	(Lab. 	Code, 	§
4610(g)(3)(A).)
[P]rospective or concurrent decisions shall be made in a timely fashion that is
appropriate for the nature of the employee’s condition, not to exceed five normal
business days from the receipt of a request for authorization for medical treatment
and supporting information reasonably necessary to make the determination, but in
no event more than 14 days from the date of the medical treatment recommendation
by the physician.
(Lab. Code, § 4610(i)(1), emphasis added.)
The “RFA shall be deemed to have been received by the claims administrator or its
utilization review organization by facsimile or by electronic mail on the date the form was received
if the receiving facsimile or electronic mail address electronically date stamps the transmission
when received. If there is no electronically stamped date recorded, then the date the form was
transmitted shall be deemed to be the date the form was received by the claims administrator or
the 	claims 	administrator's 	utilization 	review 	organization.” 	(Cal. 	Code 	Reg., 	tit. 	8, 	§
9792.9.1(a)(1), emphasis added.)
If an employer cannot make a timely decision “because the employer or other entity is not
in receipt of, or in possession of, all of the information reasonably necessary to make a
determination, the employer shall immediately notify the physician and the employee, in writing,
that the employer cannot make a decision within the required timeframe, and specify the
information that must be provided by the physician for a determination to be made. Upon receipt
of all information reasonably necessary and requested by the employer, the employer shall
approve, modify, or deny the request for authorization within the timeframes specified in
paragraph (1), (2), or (3) of subdivision (i).” (Lab. Code, § 4610(j)(2).)
If the “claims administrator or reviewer is not in receipt of all of the information reasonably
necessary to make a determination,” then the “reviewer or non-physician reviewer shall request
the information from the treating physician within five (5) business days from the date of receipt
of the request for authorization.” (Cal. Code Reg., tit. 8, § 9792.9.1(f)(1)(A) and (f)(2)(A).)
If the information reasonably necessary to make a determination under subdivision
(f)(1)(A) that is requested by the reviewer or non-physician reviewer is not received
within fourteen (14) days from receipt of the completed request for authorization
for prospective or concurrent review, or within thirty (30) days of the request for
retrospective review, the reviewer shall deny the request with the stated condition
that the request will be reconsidered upon receipt of the information.

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(Cal. Code Reg., tit. 8, § 9792.9.1(f)(3)(A), emphasis added.) And finally:
Upon receipt of the information requested pursuant to subdivisions (f)(1)(A), (B),
or (C), the claims administrator or reviewer, for prospective or concurrent review,
shall make the decision to approve, modify, or deny the request for authorization
within five (5) business days of receipt of the information.
(Cal. Code Reg., tit. 8, § 9792.9.1(f)(4).)
It is apparent there are two definite, but separate, deadlines for action in response to an
RFA: five days and fourteen days.
Defendant is required to act within “five normal business days from the receipt of a request
for authorization.” (Lab. Code, § 4610(i)(1).) This required act may include a request for additional
information. (Cal. Code Reg., tit. 8, § 9792.9.1(f)(2)(A).) The five-day deadline starts when
defendant date stamps the RFA as received, or if there is no electronically stamped date recorded,
then the date RFA was transmitted to defendant. (Cal. Code Reg., tit. 8, § 9792.9.1(a)(1).)
Here, the record does not contain a copy of the RFA that is date stamped by defendant.
There is a copy of the RFA which includes an electronic header dated March 20, 2025, including
“Fax Multi TX Report” with “Transaction OK,” however this is an electronic confirmation of
transmission, not receipt. (Exhibit 2, PDF page 3.) Therefore, we presume that the RFA was
transmitted on March 20, 2025. In the absence of defendant having provided a RFA electronically
date stamped when received, defendant is deemed to have received the RFA on the date
transmitted, which is March 20, 2025. (Cal. Code Reg., tit. 8, § 9792.9.1(a)(1).) Due to the
weekend, five normal business days from Thursday, March 20, 2025, is Thursday, March 27, 2025.
Defendant’s request for additional information was sent March 26, 2025, and therefore is
timely. (Joint Exhibit 1, PDF page 1.)2
Unless defendant receives the requested information, defendant is required within fourteen
days to “deny the request with the stated condition that the request will be reconsidered upon
receipt of the information.” (Cal. Code Reg., titl. 8, §9792.9.1(f)(3)(A).) This is because a decision
must be issued in “no event more than 14 days from the date of the medical treatment
2 The fact that defendant states in the request for additional information that it received the RFA on March 24, 2025,
is of no significance here. Only defendant’s electronic date stamp when received or the date transmitted are considered
when applying the five normal business days deadline. (Cal. Code Reg., titl. 8, §9792.9.1(a)(1).)

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recommendation by the physician.” (Lab. Code, § 4610(i)(1).) Fourteen days from March 20,
2025, is April 3, 2025.
Here, defendant did not timely issue a UR decision. The March 26, 2025, request for
additional information does not meet the plain language requirements for a decision as it does not
conditionally deny the request. (Joint Exhibit 1, PDF page 1; Cal. Code Reg., tit. 8, §
9792.9.1(f)(3)(A).)
The relevant dates are summarized and then discussed as follows:
March 20, 2025: RFA transmitted. (Exhibit 2, PDF page 3.)
March 26, 2025: Defendant’s request for additional information. (Joint Exhibit 1.)
March 27, 2025: NCFR response to request and information. (Joint Exhibit 2.)
April 1, 2025: Defendant response receipt, request for additional information. (Exhibit C.)
April 3, 2025: Fourteen day deadline from RFA for the defendant to issue a decision.
While it may be that defendant did not have the information reasonably necessary to issue a
decision when it issued the March 26, 2025 request, and when it again requested additional
information on April 1, 2025 (Exhibit C), defendant did not issue a decision within fourteen days
of the request for treatment as required by section 4610(i)(1).
Moreover, if defendant believed that it did not receive the necessary information, defendant
was required within fourteen days of the RFA to “deny the request with the stated condition that
the request will be reconsidered upon receipt of the information.” (Cal. Code Reg., tit. 8, §
9792.9.1(f)(3)(A).) There is no provision in section 4610(i)(1) that allows defendant’s subsequent
documents to be curative. (See April 7, 2025, Exhibit D; April 11, 2025, Exhibit E; April 15, 2025,
Joint Exhibit 3; April 21, 2025, Joint Exhibit 4; May 2, 2025, Exhibit F; and May 8, 2025, Exhibit
G.)
To be clear, if the defendant had conditionally denied the request within fourteen days of
the RFA as required, then defendant would have had five days from receiving the requested
information to make the decision to approve, modify, or deny the request for authorization. (Cal.
Code Reg., tit. 8, § 9792.9.1(f)(4).) Here, that did not happen.
Defendant failed to issue a timely UR decision.
IV.
Although timely UR was not completed, applicant has the burden of establishing the
treatment was reasonable and necessary. (Lab. Code, § 5705; State Comp. Ins. Fund v. Workers’

9
Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230.) Therefore, applicant must establish that
the treatment was reasonable under the Medical Treatment Utilization Schedule (MTUS). (Lab.
Code, §§ 4600(b), 4604.5, 5307.27; Cal. Code Reg., tit. 8, §§ 9792.20-9292.27.23.) This is because
“to carry this burden, the employee must present substantial medical evidence.” (Dubon II, supra,
1312.)
The Appeals Board has the discretionary authority to develop the record when the medical
record is not substantial evidence. (Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals
Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers’ Comp.
Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in
McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138
(Appeals Board en banc), we stated that “[s]ections 5701 and 5906 authorize the WCJ and the
Board to obtain additional evidence, including medical evidence, at any time during the
proceedings (citations) [but] [b]efore directing augmentation of the medical record . . . the WCJ or
the Board must establish as a threshold matter that specific medical opinions are deficient, for
example, that they are inaccurate, inconsistent or incomplete.” (McDuffie, supra, at p. 141.)
As the issue of whether the treatment was reasonable and necessary was not reached by the
WCJ in the findings, we return this matter to the WCJ in the first instance to consider this issue.
In order to reach a decision, the WCJ may consider whether further development of the record is
appropriate.
V.
Following our independent review of the record occasioned by applicant’s Petition, we are
persuaded that defendant’s utilization review decision was untimely and, as such, a determination
of the reasonableness and necessity of the medical treatment requested must be made.
We express no opinion as to the ultimate resolution of any issue in this matter.
Accordingly, we grant applicant’s Petition for Reconsideration, rescind the September 3,
2025, Findings of Fact, substitute a new Findings of Fact that finds that the UR decision was
untimely and defers the issue of whether the requested treatment was reasonable and necessary.
We return the case to the trial level for further proceedings consistent with this opinion.

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For the foregoing reasons,
IT IS ORDERED that applicant’s Petition for Reconsideration of the September 3, 2025,
Findings of Fact is GRANTED.
IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’
Compensation Appeals Board that the September 3, 2025, Findings of Fact is RESCINDED and
the following is SUBSTITUTED therefor:
FINDINGS OF FACT
1. 	Applicant Cesar Aurigue, while employed on August 19, 2019, as a ramp
agent, in San Francisco, California, by defendant UNITED AIRLINES, sustained
injury arising out of and occurring in the course of his employment, to his left ankle,
low back, right shoulder, and left hip.
2. 	At the time of the injury identified in Findings of Fact No. 1, the defendant
employer was permissibly self-insured for purposes of workers’ compensation
liability.
3. 	The UR decision in response to the March 19, 2025 Dr. Jamasbi RFA for
Functional Restoration Program issued on April 7, 2025, which is more than 14
days after the date of the RFA, so that the RFA is untimely under Labor Code
section 4610.
4. 	The issue of whether the requested medical treatment is reasonable and
necessary is deferred.

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IT IS FURTHER ORDERED that the matter is RETURNED to the trial level for further
proceedings consistent with this opinion.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSEPH V. CAPURRO, COMMISSIONER
I CONCUR,
/s/ KATHERINE A. ZALEWSKI, CHAIR
/s/ PAUL F. KELLY, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
December 1, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
CESAR AURIGUE
BRITTANY HUYNH
PEARLMAN BROWN & WAX
PS/oo
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this
date. 	o.o