DUBON v. STATE COMPENSATION INSURANCE FUND – HOW WILL THIS EN BANC DECISION AFFECT YOU?

The recent en Banc decision in the case of Dubon v. State Compensation Insurance Fund, February 27, 2014, has provided clarification regarding the roles of the WCAB and the Independent Medical Review (IMR) process in the authorization of medical treatment. The Board stated that IMR is limited to disputes over the necessity of medical treatment and that the determination regarding the validity of the Utilization Review (UR) process lies with the WCAB.

The WCAB overturned a trial judge’s opinion that she lacked jurisdiction over a defective utilization review and that the issue had to be resolved through the IMR process. The Board concluded that:

• IMR resolves disputes over the medical necessity of treatment requests.

• Issues of timeliness and compliance with the regulations governing the UR process are legal disputes which fall under the jurisdiction of the WCAB.

The WCAB held that untimely and/or materially defective UR reports are invalid because they are not probative on the issue of medical necessity and therefore not subject to IMR. Medical necessity must then be determined by the WCAB based on substantial medical evidence with the injured worker having the burden of proof to show that the treatment is reasonable and necessary.

Timely, valid UR reports which address the issue of medical necessity must go through the IMR process if requested by the injured worker or their representative.

In Dubon, the WCAB found that the UR reports in question suffered from material procedural defects which undermined the integrity of the determination because the UR physicians were not provided with adequate medical records. The UR doctor was not provided with the reports of the primary treating physician, the diagnostic studies, or the agreed medical evaluator’s reports. He denied authorization for spine surgery claiming there was no documented imaging of nerve root compression, no evidence that conservative treatment had failed and no documentation that surgery was warranted.

This information was contained in the medical records which were not submitted to the reviewing physician, thereby invalidating the UR report. The Board concluded that in such instances the WCAB has jurisdiction to determine the reasonableness and necessity of the recommended treatment based on substantial medical evidence.

Two subsequent cases have provided further clarification. In Weilmann v. TIG Specialty Insurance Company, March 7, 2014, the WCAB affirmed the trial judge’s opinion that the UR reports were invalid based on the failure of the defendant to submit the AME reports to the UR peer reviewer which explained the necessity of the treatment.

The WCAB also noted that the reports were not signed by the UR physician. This has been interpreted by some to indicate that unsigned reports would be considered invalid and not subject to IMR. However, a careful review of the opinion suggests that the lack of signature may go to the weight given to the report(s), but does not make them invalid on their face.

In Gomez v. Compwest Insurance Company, April 11, 2014, the WCAB rescinded the trial judge’s finding that the applicant’s request for left knee replacement surgery was subject to IMR when it was determined that the UR reports incorrectly identified the left knee as a denied body part. On remand the judge was instructed to make a determination regarding the reasonableness and necessity of the treatment using the criteria outlined in Dubon.

What this means to you:

These cases demonstrate the Board’s insistence on a timely and complete UR procedure when making a decision regarding the authorization of medical treatment.

Utilization review physicians must be provided with all of the relevant medical records and reports to enable them to make a determination that is based on reasonable medical probability and considered substantial medical evidence, all within the stringent statutory time frames. The Board is clearly sending a message that it is probably better to be over inclusive than under inclusive with regard to medical evidence submitted to UR thus requiring a cost v. benefit analysis when a decision is made to submit a request for treatment authorization for utilization review.

Invalid UR reports will not be subject to IMR and medical necessity will be determined by the WCAB based on substantial medical evidence with the injured worker bearing the burden of proof. Unsigned UR reports may be given little weight by the WCAB when making this determination. If these procedural mandates are not met there will likely be an increase in litigation along with the attendant costs and delays.