Recent panel decisions have carved out exceptions to the UR and IMR process to resolve medical disputes. The most significant exception was pronounced in the second en banc case of Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298. In Dubon II the Appeals Board held that any “determination of medical necessity” is to be made by the WCAB following an untimely UR, and is to be “based on substantial medical evidence consistent with Labor Code section 4604.5.”
However, the WCAB in Dubon confirmed the mechanics of what is required to show “substantial evidence” supporting a request for medical care. Quoting from Sandhagen: the WCAB in Dubon said “The Legislature amended section 3202.5 to underscore that all parties, including injured workers, must meet the evidentiary burden of proof on all issues by a preponderance of the evidence. (Stats. 2004, ch. 34, § 9.) Accordingly, notwithstanding whatever an employer does (or does not do), an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600, subd. (b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (§ 4604.5).” (Sandhagen, supra, 44 Cal.4th at p. 242 [bolding added].)
Unfortunately, the requirement for a showing that a request for treatment meets some type of a “uniform guideline” was ignored in the recent panel decision of Jared Carnes v Auto Zone.
In an Expedited Hearing, the parties stipulated that the UR was not timely. The WCJ therefore obtained jurisdiction over whether or not to award the treatment requested by Dr. Eichbaum. A Findings and Order, ruled that applicant had presented substantial evidence of need for medical treatment consisting of a sleep number bed that cost $5,325.86. The WCAB denied reconsideration in the split panel decision.
Dr. Eichbaum made a Request for Authorization setting forth that applicant was scheduled for a major lumbar surgical procedure. He has difficulty with sleeping and his bed is over fifteen years old. He has a very poor mattress. Dr. Eichbaum recommends a new mattress better suited for him and his condition to alleviate his pain and allow him to get rest. In his next letter Dr. Eichbaum said that applicant was scheduled for a lumbar decompression and fusion. In order to optimize his recovery, he’ll need an appropriate bed to sleep on after the surgery. Dr. Eichbaum states that applicant has an inadequate bed and this would definitely be a problem following his surgery.Dr. Eichbaum specifically indicates that a “Sleep Number 18” mattress would be ideal after the surgery and would maximize his ability to recover.
What was missing from the record was any reference to any “uniform guideline” by the treating physician in his reporting, or any other medical professional that that supported an order for this bed. The decision is therefore a step back from the limits specified in Dubon and Sandhagen. The digression from exiting law that requires evidence from a “uniform guideline” did not go unnoticed by Commissioner Zalewski in the dissenting opinion.
The dissent goes on to note that an employer is obligated to provide medical treatment ”that is reasonably required to cure or relieve the injured worker from the effects of his or her injury … ” (Lab. Code, § 4600, emphasis added.) Through its enactment of recent statutes, the Legislature has shown that a dispute over whether a proposed medical treatment is reasonably required is to be determined by the use of evidence-based standards and medical opinion. (See Lab. Code, § 5307.27 [which provides for the development of a medical treatment utilization schedule (MTUS) that “shall incorporate the evidence-based, peer reviewed, nationally recognized standards of care”] and § 4610.5(c)(2) [defining “medically necessary” and “medical necessity” based upon a hierarchy of standards as follows: “A) The guidelines adopted by the administrative director pursuant to Section 5307.27. (B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service. (C) Nationally recognized professional standards. (D) Expert opinion. (E) Generally accepted standards of medical practice. (F) Treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious.”]; cf. Lab. Code, §§ 4604.5 [MTUS are presumed to be correct on the issue of extent and scope of medical treatment], 46 I 0 [UR], 4610.5 and 4610.6 [independent medical review].)”
Commissioner Zelewski points out that none the evidence in this case meets this standard, and thus the Finding is not supported by substantial evidence. The majority consisting of Commissioners Frank Brass and Marguerite Sweeny seemed to believe that this standard was met, without explanation except to say that “For the reasons stated by the WCJ in his Report, which is adopted and incorporated by this reference, the December 23, 2014 decision is affirmed and defendant’s petition for reconsideration is denied.”
The mandates of Sandhagen and Dubon have thus been eroded – without explanation by the majority,- and are in the process of death by a thousand small cuts.