The Dubon decision continues to make ripples in our calm little pond of workers’ compensation. Do you remember how great it was to not be an applicant prior to Dubon? The law was very simple: UR, IMR, done. Now every single UR decision that doesn’t give away the farm has to survive a Dubon challenge, putting into play the issues of whether adequate records were reviewed or whether it was timely.
No exception can be found in the recent panel decision of Andronico v. La Rocca Seafood. Therein, the WCJ found that the UR decision was defective because the UR physician who had denied the treatment request was not competent to render a decision on this question of medical necessity. To wit, the request was for spinal surgery, and the UR physician, though Board Certified by the American Board of Orthopaedic Surgery, had not performed a spinal surgery within the last ten years.
The WCJ rule the UR was defective, reasoning that Labor Code section 4610(e), required the requested treatment to be within the UR physician’s scope of practice, with practice being the operative word. The WCJ found the fact that the UR physician’s lack of practice in the area in the last ten years to be such a material defect as to undermine the integrity of the UR decision.
On review, the WCAB disagreed. The Panel Opinion ruled that “[a] physician’s specialty, or area of board certification, or level of clinical practice, is not dispositive of his or her competency. Section 4610(e) requires only that the doctor be competent to evaluate the specific clinical issues, and that the services at issue are ‘within the scope of the physician’s practice.’”
Ultimately, though, the WCAB did rule that the UR decision was defective due to an inadequate records review, and sent it back down to the Board for a determination on medical necessity.
One thing to consider in all this is the scales of justice and our system. On the one hand, we have the injured worker’s right to medical treatment, and the ultimate decision on Dubon may rule that the entire treatment right will be determined by anonymous figures without a right of appeal. On the other hand, we have the possibility of every single case having to address these vague questions: how many surgeries in the last 10 years qualifies a physician to render an opinion? How many years in practice? How much of the medical record must the physician review to satisfy the Dubon requirements?
Remember, dear readers, the whole reason why IMR came about was to take the uncertainty out of the equation – to stop the uncertainty that comes with every other UR physician’s resume or every other Board, or every other make-up of the panel on reconsideration.
Your humble blogger further points out that the uncertainty breeds litigation, the blurred standards invite the adversarial process. What the heck are we supposed to do with scope of practice, when one UR physician is Board certified but has performed no surgery in the last ten years, and another might not be Board certified but performs five a month?
In the purely practical sense, however, while the WCAB considers the merits of each position int the Dubon case, the unspoken sense is there that Dubon has created a flood of Reconsideration petitions for the commissioners to address. Here’s hoping it tips the scales for a reversal of Dubon, which your humble blogger intends to refer to (because he’s oh-so-clever) as “Duboff”.
