[Overturned] Dubon: WCAB Involvement for Procedurally Deficient Utilization Review
The timeliness of Utilization Review (UR) has always been well considered for a defendant to properly and legally deny unreasonable or unnecessary medical treatment. However, timing is not the only obstacle to overcome in ensuring a valid UR decision. The Dubon case now allows a Workers’ Compensation Judge to rule on reasonableness and necessity of medical treatment in lieu of the UR/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.
Jose Dubon v. World Resotration, Inc.; and State Compensation Insurance Fund (79 Cal. Comp. Cases 313) is an en banc decision that was originally decided in February of 2014. Reconsideration was granted in May of 2014 and decision is pending. However, the Order Granting Reconsideration states that the original decision shall remain in effect and binding, pending the issuance of a Decision After Reconsideration.
The facts of the original case are as follows:
The applicant sustained an industrial spinal injury. A consulting physician requested spinal surgery based on a lumbar discogram and the opinions of numerous prior medical treaters as well as other prior diagnostic testing. The Utilization Review (UR) physician deemed the surgery was not medically necessary based on a lack of certain identifiable conditions. The UR physician states he based his decision after reviewing the consulting physician’s report, a lumbosacral MRI, and “18 additional pages of medical records.” The 18 additional pages were not specifically identified.
The Rules of the Administrative Director allow a defendant’s UR procedures to allow an additional “internal” appeal of the initial UR decision. This process was utilized and the second UR physician provided a decision that was essentially identical to the original UR report which did not breakdown what “additional” reports were reviewed.
The applicant then signed an application for Independent Medical Review (IMR) but concurrently filed a Declaration of Readiness to Proceed (DOR) for an Expedited Hearing. The applicant’s DOR contended the defendant’s UR denial was defective because there was insufficient record review.
The expedited hearing took place and the Workers’ Compensation Judge found the UR physician’s lack of proper identification of reviewed records was a violation of section 4610 (g)(4) and AD Rule 9792.9.1(e)(5)(D). Additionally, the 18 pages were not sufficient with the “wealth of medical records” available. The failure of reviewing all of the relevant medical records “was a critical error” because “the determination [of medical necessity] is made in part based upon the severity of pain, duration of pain, radiculopathy as well as a review as to whether conservative care had been undertaken.”
Despite the WCJ finding of procedural defects, she concluded the defects must be resolved through the IMR process. Further, the WCAB cannot allow the spinal surgery because the issue of medical necessity must be determined by IMR. Applicant then filed a timely Petition for Reconsideration and it was granted.
The Appeals Board ultimately finds:
- IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.
- A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision. Minor technical or immaterial defects are insufficient to invalidate a defendant’s UR determination.
- If a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
- If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR process if requested by the employee.
The Court explains that the right of the UR decision to be reviewed by IMR presupposes a valid UR determination. Their conclusion is that if the UR determination is not valid, the IMR is not the exclusive means of determining medical necessity. It goes on to state that the defendant cannot use the IMR process as a vehicle to cure defects in its UR process if the UR decision has been found invalid.
Based on the findings of this case, it is imperative that not only are all timing requirements adhered to, but also that sufficient medical reports are sent to the UR physician. I recommend to my clients that if there are ever any questions in these regards that they contact me to discuss.