In Dubon v. World Restoration, Inc., (Dubon II), 79 Cal. Comp. Cases __, the Workers’ Compensation Appeals Board (En Banc) reconsidered its earlier en banc decision in Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 (Dubon I). Limiting the major damage that Dubon I did to the UR process, the Board holds in Dubon II that the WCAB may determine that a UR decision is invalid, and not subject to independent medical review (“IMR”), only if it is untimely. If the UR decision is found to be untimely, the Board – not an IMR – will determine the medical necessity of the requested treatment based on substantial evidence. All other disputes regarding a UR decision must be resolved by IMR.
Jose Dubon sustained an industrial injury to his spine and other body parts while employed by World Restoration, Inc., a State Compensation Insurance Fund insured. After prescribing conservative treatment for over three years, Mr. Dubon’s physician requested authorization to perform back surgery. UR denied the request and Mr. Dubon appealed, arguing the UR denial was defective because there were insufficient records forwarded for review. The Workers’ Compensation Judge held that disputes over claimed procedural defects in defendant’s UR denial must be resolved through IMR.
In Dubon I the Board held that Labor Code sections 4610.5 and 4610.6, permit an injured worker disputing a UR decision to request IMR to evaluate the medical necessity of the proposed treatment. However, under section 4604, the WCAB also has jurisdiction to determine non-medical disputes concerning the timeliness of a UR decision and the adequacy of the medical information provided to the UR reviewer.
This decision led to an uproar in the employer community and a State Fund petition was submitted to the WCAB to reconsider its opinion. The fear was that the decision undermined the system of UR and IMR created in SB 863, which was thought to be a major source of cost savings, and would become a source of increased litigation expense while providing a major detour from the legislature’s intention of having medical decisions made by medical experts.
In Dubon II, the Board backs away from some of its earlier holdings. It now holds that a UR decision may be held by the WCAB to be invalid only if it is untimely. Timeliness is a legal issue and IMR physicians lack the legal expertise to decide whether a UR decision is timely. Therefore, jurisdiction must lie with the WCAB to make the determination regarding timeliness. If a UR decision is timely, an IMR physician must resolve disputes regarding the medical necessity of requested treatment. Because an untimely UR decision is effectively no UR decision at all, the issue of medical necessity in such a case must be determined by the WCAB based on substantial medical evidence.
Dubon II therefore limits the scope of Dubon I. Under Dubon II, the opportunity for the WCAB to interfere with the process is limited to a determination of timeliness, thus limiting the likelihood that the WCAB – as opposed to IMR physicians – will be rendering “medical necessity” determinations. The decision emphasizes the obligation of workers’ compensation administrators to adhere to the strict timelines promulgated by section 4610.
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