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The WCAB changed course in its second en banc opinion on the landmark case of Jose Dubon v World Restoration, SCIF now known as Dubon II. The new decision comes as some relief to the defense industry that has seen major aspects of SB 863 evaporate in a flurry of judicial opinions attacking some of its major provisions. The applicant community no doubt will have consternation over this newest development.

Last February, the WCAB in Dubon I ruled that the WCAB rather than the IMR process must decide appropriate medical treatment in situations were UR was defective. It reasoned that 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 a defendant may not use this as a vehicle to cure defects in its UR process if the UR decision has been found invalid. Where there is no valid UR decision subject to IMR, the issue of medical necessity must be determined by the WCAB.

In a surprising reversal, the WCAB has now ruled:

1. A utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.
2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), not IMR.
3. All other disputes regarding a UR decision must be resolved by IMR.
4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5.3

The new case reversed the prior ruling stating “Therefore, we will rescind our February 27, 2014 en banc decision in Dubon I and affirm the decision of the workers’ compensation administrative law judge (WCJ), which held that the medical necessity of applicant’s requested back surgery must be determined by IMR, notwithstanding any procedural defects in defendant’s timely UR decision.”

“In our February 27, 2014 en banc decision, we held that ‘[a] UR determination is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR determination’ and that ‘[m]inor technical or immaterial defects are insufficient to invalidate a defendant’s UR determination.’ (Dubon I, 79 Cal.Comp.Cases at pp. 315, 320.) We now modify our holding to conclude that a UR decision is invalid only if it is untimely.”

However, the WCAB went on to say that “Legal disputes over UR timeliness must be resolved by the WCAB.” With the exception of timeliness, “all other requirements go to the validity of the medical decision or decision-making process. The sufficiency of the medical records provided, expertise of the reviewing physician and compliance with the MTUS are all questions for the medical professional.” “With the exception of timeliness, all defects in the UR process can be remedied when appealed to IMR. The legislature has made it abundantly clear that medical decisions are to be made by medical professionals. To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.”

“All requirements of section 4610 should be complied with, however, failure to do so will not invalidate a UR decision. A defective UR can be corrected by either exercising an internal UR appeal process, if available, or through IMR where both parties may submit records, and for which an appeal process has been established. Timeliness, however, cannot be fixed. Whether a UR decision is timely is a legal determination and must be decided by a WCJ.”

Commissioner Marguerite Sweeney concurred and dissented from the en banc decision. She would affirm Dubon I.