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Is Error re: Accepted Status of Injury Fatal Under Dubon?

While IMR awaits its fate with the possibility of a new holding in the Dubon case, the show must go on, and UR/IMR rulings are still made in lovely world of Workers’ Compensation.

A recent panel decision ordered a remand of the WCJ’s findings on whether the UR decision was defective to the level contemplated by Dubon itself.

Applicant sought treatment for his left knee, and the UR decision denied it.  However, in the UR report itself, reference is made to the left knee being a denied claim, when it is actually admitted.  The WCJ held that the UR decision must be taken through the IMR Process, but subsequent to that determination, the WCAB issued its ruling in Dubon.

As my beloved readers will recall, the Dubon decision held that a UR determination need not go through IMR if it untimely or suffers from a material procedural defect that undermines the integrity of the UR decision.  However, Dubon also held that, even if the UR report proves invalid, the applicant still bears the burden of proving that the treatment is necessary, opening the door for the defense to copy-paste the UR reasoning into its trial brief.

That being said, UR is not there to determine the compensability of a claim – that’s what the Medical Unit and AMEs are for.  So, if the UR physician mistakenly writes that the left knee claim is denied, rather than accepted, but then provides the sound medical reasoning necessary to deny authorization for the treatment, is that a material procedural defect as per Dubon?

What if the UR physician had noted that “medical records reflect that applicant’s favorite color if blue?”  Well, applicant, aflame with righteous indignation, could pound the witness stand and scream from the top of his lungs that his favorite color is green.  He could bring in witnesses, including childhood friends, that would confirm that as long as they knew applicant, his favorite color has always been green.  In fact, applicant could conceivably wear a green shirt and a green tie to the trial, such that the WCJ, on pain of public flogging, could make no finding other than applicant’s favorite color is green.  What difference does it make?

The medical reasoning is still there, and has nothing to do with whether the injury is accepted, or denied; compensable or not.

Now, on the other hand (and as a fair and impartial defense hack, your humble blogger must always provide the other hand), the weakness of the UR report doesn’t have to be just a material procedural defect, but rather a material procedural defect that undermines the integrity of the UR decision.  Accordingly such a flaw as not recognizing that a particular injury is accepted, impeaches the “integrity of the UR decision.”

Well, we don’t have an answer just yet, but it would be interesting if a mistake of a logically irrelevant fact were sufficient to jettison the IMR procedure in a particular case.  Of course, if the stars align on Dubon, it may become a moot point.  Here’s hoping!

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