Parker, Kern, Nard & Wenzel
Legal Updates


Not so fast, The Workers' Compensation Appeals Board Rescinds Dubon I and Issues New Determination

By
Shon T. Wilson

On February 27, 2014, the Workers' Compensation Appeals Board provided their opinion in the case of Jose Dubon v. World Resotration, Inc.; and State Compensation Insurance Fund (79 Cal. Comp. Cases 313).  It was held that a Workers' Compensation Judge could rule on reasonableness and necessity of medical treatment in lieu of the Utilization Review (UR)/Independent Medical Review (IMR) process if the UR decision suffers from material procedural defects that undermine the integrity of the UR decision.  Specifically, the UR physician must be provided sufficient, adequate medical records for review in order to provide a well-informed opinion.

After the decision in Dubon I, State Compensation Insurance Fund filed a Petition for Reconsideration and it was granted.  On October 6, 2014, the WCAB issued an En Banc decision rescinding that earlier decision. The WCAB has now determined:

  1. A UR decision is invalid and not subject to IMR only if it is untimely;

  2. Legal issues regarding timeliness of a UR decision must be resolved by the 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.

In my opinion, this decision coincides with the Legislative intent of the statutes governing the UR/IMR process.  It allows nearly all medical treatment decisions to be made by the medical experts.  Having said that, the WCAB can still make a medical necessity decision when and if a UR determination is untimely.  Labor Code 4610(g) should be reviewed for timeliness of UR decisions with a distinction of time depending on the severity of the applicant's injury/illness and whether the treatment is needed on an emergency basis.