Home > Uncategorized > Don’t Settle Those Dubon Issues Just Yet… Cavalry (May Be) en Route

Don’t Settle Those Dubon Issues Just Yet… Cavalry (May Be) en Route

Put down that pen! Step off that ledge! Do not cave in on that medical treatment dispute!

From the looks of it, the Dubon matter may have a new twist in the works – the WCAB recently granted Reconsideration to consider the issues raised by SCIF, which means there may be a new opinion coming down soon that will close the lid on the Pandora’s Box of issues opened by the original opinion.

Before we get too excited, we should all note that “the Appeals Board’s February 27, 2014 en banc opinion in Dubon shall remain in effect and binding.”

On the other hand, there are more than a few reasons to be optimistic.  For starters,  After Dubon, a new commissioner joined the panel – Katherine Zalewski.  Commissioner Zalewski brings particularly persuasive expertise on this issue because she was instrumental in the drafting of SB-863, which brought the embattled IMR process to California.  As someone who was in the proverbial kitchen while the even-more proverbial meal was being prepared, she can speak with considerable authority as to the intent of the Legislature in drafting and passing SB-863 and IMR with it.

Additionally, whereas the original Dubon opinion had the benefit of the parties’ respective arguments, since Dubon, the internet, the lecture circuits, and even the smokey rooms where benefits are poker chips and all the big wigs of the big firms play for keeps, have been filled with opinions, analysis, and arguments for and against the reasoning behind allowing the WCAB to decide whether or not a particular medical dispute is confined to Independent Medical Review.


Now, in all likelihood, if you’re an adjuster with an attorney on the file, you’re getting an e-mail after every UR decision with a “Dubon analysis” which provides not only confirmation of the timeliness of your UR report, but its validity for other weak points, which I will decline to list here in appreciation for the three applicants’ attorneys that read this blog (But your honor, the humble blogger said the UR report was defective because…)

That being said, a WCAB en banc opinion returning all medical disputes to UR and IMR will not only eliminate the need for this analysis (and the associated billables), but also the resulting litigation – after all, an applicant’s attorney playing the scorched Earth campaign is more than happy to inflict a needless IMR bill on the defense while also filing for an expedited hearing to perform a Dubon challenge.

So, here’s hoping for a favorable result from the WCAB soon.  In the meantime, don’t cave on the medical treatment awards, even in the face of some UR defect or another: in a best-case scenario, help is on the way, and in a worst-case scenario… well… just look around, because this is it.




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