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The parties stipulated that Manual Gomez suffered and industrial injury to both knees,his back and psyche in 2007 which resulted in 45% permanent disability and need for further medical treatment. After this stipulation, the treating physician Kevin Pelton, MD sent Defendant Compwest Insurance a Request for Authorization (“RFA’) for partial left unicompartmental knee replacement with post-operative therapy.

The UR physician stated two reasons for non-certification of the treatment request. First, he states that the guidelines for partial knee replacement are not met, relying on the ODG knee chapter. Second, the UR physician stated that the left knee is not an accepted body part. However, the second reason was not correct since the stipulation agreed that both knees had been injured. The record does not contain a request for Independent Medical Review (“IMR”) had been requested, but the EAMS showed an objection to the request for IMR filed by the defendants.

After a trial and submission of the issue, The WCJ determined that UR was conducted in a timely manner. However, the record demonstrates that the UR process was flawed. The first of the two reasons for denial treatment was medical necessity based on review of medical reports and the ODG treatment guidelines. However, the second reason, that ‘”he left knee is not an accepted body part,” is factually incorrect. The WCJ awarded treatment for the right knee, but WCJ further found that the request for medical treatment of the left knee, “was communicated to defendant on or after July 2, 2013 and, therefore, must be addressed through the independent medical review process.”

After the WCJ issued his January 16, 2014 decision, the Appeals Board in Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 addressed the process that now applies to medical treatment disputes following the Legislature’s implementation of the !MR process as part of SB 863. In Dubon, the Appeals Board concluded that the defendant’s UR process in that case, “suffers from material procedural defects that undermine the integrity of the UR decision because the UR physicians were not provided with adequate medical records.” For that reason, the case was returned to the WCJ for determination on whether the requested medical treatment was reasonably required.

Reconsideration was granted in the panel decision of Gomez v Facilities Support Services. In this case, the WCJ initially found that the request for treatment of the left knee was required to be submitted to IMR because the request for that treatment was communicated to defendant after the July 2, 2013 implementation of the !MR process by the Legislature. However, the WCJ also wrote in his Report that the UR process was “flawed” because it incorrectly states that applicant’s left knee is a denied body part. Thus, under Dubon, the question is whether there are UR flaws that are “material procedural defects” that undermine the integrity of the UR decision, or if there are only “minor technical or immaterial defects” that do not invalidate the UR determination. This issue should be first addressed by the WCJ at the trial level in light of the Appeals Board decision in Dubon.

If the WCJ finds that there are material procedural defects that invalidate the UR, he should then determine, based upon substantial medical evidence, if the requested left knee medical treatment is reasonably required to cure or relieve the injured worker from the effects of his injury. The WCJ’s new decision should provide a complete explanation of the reasons for his determinations.