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WCAB Can Review Defective UR

Hello, dear readers!

The winds have blown, the storms have raged, the heavens have poured out their bounty upon the thirsty California lands, and your humble blogger remains ready and vigilant to report to my elite readership of the goings on in the world of workers’ comp.  After all, “neither snow, nor rain, nor gloom of night, stays this humble blogger from ranting about workers’ comp.”  And as the storm clouds parted and the water receded, two new decisions from the WCAB were left for the world to see.

The subject of this post is one of those decisions, the en banc opinion in the matter of Jose Dubon v. World Restoration, Inc.  This case has lost no time in gathering the condemnation of many voices in the workers’ compensation world – it will increase litigation, it will destroy the gains made by SB-863, human sacrifice, dogs and cats living together…

Relax dear readers – the sky is not falling, and Chicken Little can go home.

Basically, what happened was this: applicant’s primary treating physicians recommended surgery, and UR denied it.  After an appeal, the initial decision to deny the treatment was upheld.  So, applicant’s counsel requested IMR review of the UR decision, but also filed a Declaration of Readiness to Proceed to an expedited hearing to test the validity of the UR decision.

The WCJ reluctantly ruled in favor of the defense, reasoning that only IMR can review UR decisions (See: Labor Code section 4610.5(e) (“a utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section.”))

In short, it appears that the UR report did not review all the pertinent records, primarily reviewing the request for authorization and 18 pages of unidentified medical documents.  The WCJ interpreted 4610.5(e) to preclude her disturbing the UR decision.

Upon applicant’s petition for reconsideration, the en banc opinion reversed.  Essentially, the Dubon opinion would require applicants to categorize their displeasure with the UR denial into one (or two) categories.  The first category is a substantive medical dispute.  In those cases, the WCAB encourages applicants to request IMR.

The second category is for those Utilization Review reports that are procedurally defective, either because they are untimely or because the relevant regulations were not followed with respect to listing medical records received and reviewed, or a failure to review all the pertinent information.   This second category of UR may be reviewed by a WCJ, but even if UR is found defective, the applicant must still prove that the medical treatment is necessary and related to the injury.

Now, I know, I know, dear readers – I’m a defense attorney and this is a defense blog so I should condemn this decision for not saying that a UR report is only untimely if IMR says it is untimely and that SB-863 intended to bar WCJ’s from the use of calendars.

But, come on folks – anyone who has been to the Board since January 1, 2013, will tell you that applicants have been pushing this theory non-stop.  The theory has always been that IMR only reviews UR, and that if the denial does not meet the statutory requirements for UR, it is not really UR.  UR understanding me, yes?

Another critique of this case has been that the burden is shifted on the UR reviewer to review all medical reports and the entire medical history, where the burden is better placed on the physician requesting authorization.

Look, your humble blogger is a cold, heartless defense attorney – sure.  But the purpose of Utilization Review is not to game the system – if the UR reviewer thinks that the request for authorization is coming from nowhere, he or she can issue a delay notice and request  more information from the physician requesting authorization.  If the treating physician doesn’t respond or doesn’t provide the requested documentation, it’s a lot easier to issue a denial and make it stick.  If your UR vendor either rubber-stamps approvals or rubber-stamps denials, maybe it’s time to find a better UR vendor.

On the other hand, this decision might actually cut down on some litigation: if the UR decision is procedurally defective, a good defense attorney will advise his clients of that fact from the get-go, and save the defense unnecessary delay and litigation costs.  On the other hand, if the applicant truly can’t point to a substantive procedural defect, his or her attorney might not want to waste the time (and the sanction dollars) on taking a frivolous position.

This may result in a lot more delay notices being issued, but perhaps it will condition primary treating physicians to properly document and support their requests.

Relax, dear readers, the sky is not falling and the world is not about to end – you’re just experiencing another day in the wonderful world of workers’ comp.  Now roll up your sleeves – it’s only Monday.

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