Welcome back from your weekend, dear readers.  As you know, your humble blogger is not only a font of information (and sometimes misinformation), but is also the recipient of may mutterings and whispers in the workers’ compensation world.  Sometimes these whisperings are from loyal and generous readers, sometimes from ghosts of cases well denied (admittedly, after the second glass of Diplomatico rum, it is hard to recall the source).

In any case, word around the proverbial water cooler is that Dubon is coming down soon.  Whether this is wishful thinking of well-informed gossip, your humble blogger cannot say.

But, in the meantime, we must deal with Dubon’s children.  In this particular case, that of Newton v. Jack-in-the-Box, Dubon strikes again!

Newton has to do with an applicant seeking treatment as recommended by her primary treating physician, namely aquatherapy.  Utilization Review had issued a delay notice, signed only by a registered nurse.  Ultimately, the UR denied the treatment and applicant filed a DOR for an expedited hearing, arguing that the UR report was defective.

Initially, the WCJ agreed with applicant, because the UR report had referenced some number of additional pages of medical reports or records reviewed in the case.  On reconsideration, the WCAB disagreed with the WCJ, noting that such a minor violation of Rule 9792.9 constitutes a defect that is “minor, technical, or immaterial.”

And now, dear readers, the story takes a bad turn.  The WCAB found another reason to overturn the UR decision: the delay was signed by a nurse, rather than by a licensed physician, and as we all know, Labor Code section 4610(e) requires any delay of requests for authorization of medical treatment to be made by a licensed physician.

Accordingly, the WCAB issued a notice of intention to issue an order awarding applicant medical treatment (aqua therapy) as originally recommended by the primary treating physician.  Because the WCAB found a reason to overturn the UR decision that had not been raised at trial, the defendant is entitled to present its arguments in response.

Now, your humble blogger is not representing either of the parties in this case, and would not presume to instruct learned counsel in the discharge of its duties.  That being said, your humble blogger would submit that the following arguments should be made:

1. To the extent that the section 4610(e) was violated, is the Utilization Review system really impeached by having an RN sign a delay notice?  After all, the WCAB just noted a clear violation of Rule 9292.9, and brushed it aside as a minor technical violation, before deciding that a short delay in a decision was sufficient to “undermine the integrity of the UR decision.”
2. Even if UR has some defect, isn’t it appropriate to send the matter back down to the WCJ to further develop the record on the issue of medical necessity?  Dubon held that “[i]f 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.”  In this case, even if there is a determination that UR is defective, there still needs to be a decision AFTER that, as to whether the injured worker is entitled to the treatment based on substantial medical evidence.

   If you will recall, dear readers, the Dubon opinion itself did not award medical treatment to the injured worker, but instead provided an order to “return the matter to [the WCJ] for further proceedings and a decision on whether the [treatment] is reasonably required.”

3. Finally, even if this panel of commissioners is not inclined to remand the matter back to the WCJ to determine medical necessity, doesn’t the defendant automatically win?  If there is to be no hearing or development of the record on medical necessity, how is the applicant to carry its burden that the treatment is necessary, as expressly required by Dubon?  Whatever the procedural faults of the UR decision, if any, the UR physician’s logic still applies, and can be copy-pasted into any brief on the issue of medical necessity.

Your humble blogger wishes the defense in this case all the luck in the world.

Have a good week, dear readers!