Independent Medical Review was one of the many drastic changes which came along with the passing of SB 863. All requests for authorization post July 1, 2013 require any dispute involving a utilization review determination to be addressed through independent medical review pursuant to Labor Code section 4610.5.

Utilization review disputes are to be addressed in accordance with Labor Code section 4610.5 as indicated in Labor Code section 4610(g)(3)(A). Labor Code section 4610.5(b) provides any dispute over utilization review decision regarding treatment shall be resolved only in accordance with Labor Code section 4610.5.

An en banc decision has been issued after reconsideration in Jose Dubon v World Restoration Inc., and State Compensation Insurance Fund as of February 27, 2014. According to the Workers’ Compensation Appeals Board, “In reaching its decision that the utilization review decision was invalid, that the UR decision therefore was not subject to independent medical review (IMR) and that the Workers’ Compensation Appeals Board must determine the medical necessity of the request for treatment based on substantial medical evidence.”

The Workers’ Compensation Appeals Board specifically required IMR to solely resolve any disputes over the medical necessity of treatment requests. Any issues involving timeliness and compliance with statutes and regulations governing utilization review are legal disputes within the jurisdiction of the Workers’ Compensation Appeals Board.

Any utilization review decision is invalid if it is 1) untimely or 2) suffers from material procedural defects that undermine the integrity of the utilization review decision. Minor technical or immaterial defects are insufficient to invalidate a defendant’s utilization review determination.

Should a defendant’s utilization review be found invalid, the issue of medical necessity is not subject to Labor Code section 4610.5, but it is to be determined by the Workers’ Compensation Appeals Board based on upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.

If there is a invalid utilization review modifying or non-certifying a RFA, the issue of medical necessity shall be resolved through the IMR process if requested by the employee within the time constraints of Labor Code section 4610.5, which is no later than 30 days after service of the UR decision.

In Dubon, timeliness of the utilization review decision was not at issue. The defect determined by the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board was the physician who reviewed the request for authorization identified 18 pages of record which were not otherwise identified nor discussed in the utilization review determination. The failure to identify records was in violation of Labor Code section 4610(g)(4).

The utilization review determination was also found defective due to the failure to review the records of multiple other physicians in the file, which included reports of the prior treating physician and an AME.

The Workers’ Compensation Judge noted failure to review all the relevant medical records was a critical error due to the determination of medical necessity was to be made in part based on the severity of pain, duration of pain, radiculopathy as well as a review as to whether conservative care had been undertaken.

The Workers’ Compensation Appeals Board indicated in situations where utilization review was not validly issued either on timeliness or due to procedural defects, the Workers’ Compensation Appeals Board retained jurisdiction and can rule on medical treatment issues with the applicant having the burden to provide substantial evidence to support the request under 8 CCR section 10451.2(c)(1)(C). As long as utilization review determination is procedurally adequate and timely, IMR is the only remedy by the injured worker and failure to pursue both remedies could result in a waiver of the right to challenge the treatment, if the Workers’ Compensation Appeals Board comes to the conclusion that jurisdiction is lacking.

If you have not experienced it already, this has opened a pandora’s box creating additional litigation and exfoliating uncertainty in every utilization review decision before the Workers’ Compensation Appeals Board.

Critics are highly skeptical of the Dubon decision as any adjuster would find it impractical to provide every Request for Authorization submitted to UR with a complete medical file as decision typically need to be completed within five working days. Statutory time frames for utilization review make an opportunity to review the complete medical record practically impossible.

The short time frames implicate a legislative intent for utilization review not to involve such an encompassing review. A determination should be made with the properly documented request for treatment along with relevant documentation to make an informed decision.

Critics of the Dubon decision have anticipated a drastic increase in litigation and based on my experience, utilization review litigation has increased challenging timeliness and procedural defects of the utilization review process. This increased litigation will result in inflated costs, further delays in not only issuing treatment but in the overall resolution of litigated claims.

The Workers’ Compensation Appeals Board has indicated that a Petition for Reconsideration has been filed by State Compensation Insurance Fund. State Compensation Insurance Fund is arguing that even if the Workers’ Compensation Appeals Board is correct in its findings that Sandhagen remains good law after the passage of SB 863, the determination of the utilization review being defective does not open the doors for making a medical determination regarding treatment by a Workers’ Compensation Judge. Medical decisions are to be established by physicians and not Workers’ Compensation Judges.

The Workers’ Compensation Appeals Board has noted the original decision in Dubon from February 27, 2014 shall remain in effect and binding pursuant to Labor Code § 5910 and Title 8 CCR section 10341.

There is doubt the Workers’ Compensation Appeals Board will issue any change in its position on its decision in Dubon. Each passing week brings down multiple noteworthy Panel decisions which have further carved out “defects” in the Utilization Review / IMR process and apply the findings from Dubon. Stay tuned for further updates and alterations in this ever changing area of Worker’s Compensation.