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In 2003 and 2004, Jose Dubon sustained industrial injuries to his spine and other body parts while employed by World Restoration, Inc., Applicant’s primary treating physician for both injuries has been Mark W. Brown, M.D. His consulting orthopedic surgeon has been Albert Simpkins, Jr., M.D. The agreed medical evaluator (AME) in orthopedics has been Israel Rottermann, M.D.

In a report dated July 1, 2013, Dr. Simpkins requested authorization to perform an anterior and posterior fusion from L4 through S1 with decompression. On July 19, 2013, Bunch CareSolutions, SCIF’s UR agent, sent Dr. Simpkins a letter denying authorization for surgery as not medically necessary. The letter was based on the July 19, 2013 report of SCIF’s UR physician, Donald A. deGrange, M.D., a board certified orthopedic surgeon. Dr. Simpkins invoked Bunch CareSolutions’s internal UR appeal process. On August 2, 2013, a second UR denial was issued based on the report of board certified orthopedic surgeon Kevin Mark Deitel, M.D. In all significant respects, this report was identical to that of Dr. deGrange.

On August 12, 2013, applicant signed an application for IMR. On August 14, 2013, applicant filed a declaration of readiness (DOR) for an expedited hearing regarding his entitlement to spinal surgery. In the DOR, applicant contended that defendant’s UR denial was defective because, among other reasons, there was insufficient record review.

In her Opinion on Decision, the WCJ observed that: (1) Dr. deGrange did not identify the 18 pages of additional medical records he reviewed, in violation of section 4610(g)(4) and AD Rule 9792.9.1(e)(5)(D) (Cal. Code Regs., tit. 8, § 9792.9.1(e)(5)(D); see also § 9792.9(l)(3));5 and (2) there was ” wealth of medical records”that Dr. deGrange did not review, including all reports of Dr. Brown, the reports of Dr. Simpkins (other than the July 1, 2013 report), the AME report of Dr. Rottermann, and the discogram report of Dr. Lowenstein. The WCJ said that Dr. deGrange’s failure to review all of the relevant medical records “was a critical error” because “The determination [of medical necessity] is made in part based upon the severity of pain, duration of pain, radiculopathy as well as a review as to whether conservative care had been undertaken.” The WCJ added that a UR physician “is compelled by ACOEM to look at objective testing performed coupled with subjective complaints, history of radiculopathy, and history of conservative care” and that “a complete review of applicant’s medical condition and prior treatment “is especially important when utilizing ACOEM Guidelines in determining whether treatment should be authorized.” Despite the procedural defects with defendant’s UR that the WCJ identified, she concluded that any alleged procedural defects must be resolved through IMR. The WCJ further concluded that the WCAB cannot allow the surgery recommended by Dr. Simpkins because the issue of medical necessity must be determined by IMR.

The WCAB in the en banc decision of Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund agreed that the UR was inadequate but disagreed with the solution.

In reviewing the UR decision the sole focus of the IMR physician is the medical necessity of the proposed treatment. (Lab. Code, §§ 4610.5(c)(2), (c)(3), (k), 4610.6(a), (c), (e).) Because the role of an IMR physician is limited to assessing medical necessity, disputes over whether a UR decision is timely and/or procedurally proper must be resolved solely by the WCAB. (Lab. Code, § 4604 [“[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″ (italics added)].) Judicial scrutiny of the procedural validity of a UR decision is of particular importance since SB 863 amended the Labor Code to bar an injured worker from renewing a treatment request for 12 months absent a documented material change in circumstances. (Lab. Code, § 4610(g)(6).) Furthermore, requiring strict compliance with mandatory time limits and other regulations governing UR will ensure the integrity of the UR process and the decisions rendered. This result will be beneficial to the workers’ compensation system as a whole.

But, not all procedural violations of section 4610 or the AD’s Rules render a UR decision invalid. Instead, a UR decision is invalid only if it suffers from material procedural defects that undermine the integrity of the UR decision. A UR decision is invalid if it suffers from material procedural defects that undermine the integrity of the UR decision. If, however, there are only minor technical or immaterial defects, a defendant’s UR determination remains fully subject to the IMR process.

If a UR decision is invalid because its integrity was undermined due to the defendant’s failure to provide the UR physician with adequate medical records or because the UR physician failed to consider them, there is no valid UR determination and no basis for the employee to invoke IMR. Although both the defendant and employee may submit medical records and reports to the IMR organization (Lab. Code, § 4610.5(l)(1), (f)(3); see also Cal. Code Regs., tit. 8, § 9792.10.5(a)(1), (f)(3), (h)(1)), a defendant may not use this as a vehicle to cure defects in its UR process if the UR decision has been found invalid. The need for a UR physician to be provided with and review sufficient medical records to determine the medical necessity of a treatment request and to disclose what those records are goes to the very core of a UR decision. Where there is no valid UR decision subject to IMR, the issue of medical necessity must be determined by the WCAB.