WCAB Issues New En Banc Decision Limiting Review of UR to Timeliness Issues

Under the new en banc decision, Alan Gurvey said there is "no incentive for UR to be done properly." As long as the decision is issued within five days, "that's a valid UR," or so it seems, he reflected. And then the decision goes through IMR, which upholds the UR denial 85% of the time.

The California Workers' Compensation Appeals Board, sitting en banc, ruled Monday that a utilization-review decision will be deemed invalid and ineligible for the independent medical review process created by Senate Bill 863 only if it is untimely.

If a UR decision is untimely, the WCAB said it can make the determination of whether the requested treatment was medically necessary or not, otherwise, the dispute must go through IMR.

Monday's ruling in Dubon v. World Restoration is a step back from the board's February en banc decision in the same case, which had held that UR decisions suffering from "material procedural defects" also couldn't go through IMR.

After the WCAB issued its initial ruling in the Dubon case, the composition of the board changed. Commissioner Alfonso Moresi stepped down when his term expired at the end of February, and former Department of Industrial Relations Chief Counsel Kathy Zalewski joined the board in May.

The board in February had ruled that an IMR doctor's failure to review all of the relevant medical records related to Jose Dubon's industrial injury had rendered the doctor's opinion invalid. The WCAB said therefore, a workers' compensation judge could make the call about whether Dubon really needed the surgery that his doctor had requested permission to perform.

The carrier for Dubon's employer – the State Compensation Insurance Fund – requested reconsideration in March, and all of the WCAB's members – including Zalewski – agreed to reconsider the Dubon case after Zalewski took her seat.

On Monday, the WCAB's new en banc decision concluded that procedural defects in the UR process won't keep a case out of IMR after all.

In passing SB 863, the board reasoned that the Legislature "made it abundantly clear that medical decisions are to be made by medical professionals," and that "IMR is to be the vehicle for reviewing a UR decision."

However, the board emphasized that IMR is for issues of "medical necessity." Since "legal issues regarding UR timeliness are not issues of medical necessity" the board said that these kinds of disputes cannot be resolved by IMR.

But, the board said, "(t)o allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863."

Commissioner Deidra Lowe wrote separately to say she thought the dispute had been rendered moot since the treatment request for Jose Dubon's back surgery had already gone through IMR and State Fund had authorized the requested back surgery.

Commissioner Marguerite Sweeney dissented, arguing that the Labor Code established substantive requirements for UR decisions, not just timelines for their issuance, and controversies as to whether a UR decision is valid should be resolved by the WCAB.

California Applicants’ Attorneys Association President Bernardo de la Torre on Monday issued a statement saying his group was "disappointed" by the new en banc ruling.

He predicted that the decision will allow UR companies to "blatantly and willfully ignore and violate the law" by issuing decisions that are "woefully incomplete" or based on the opinion of a physician who is "in the wrong field of medicine and isn’t qualified" to weigh in on the treatment dispute.

De la Torre said he also feared the decision will allow carriers "to game the system by failing to send UR reviewers adequate medical records to support the doctor’s recommended medical treatment, so UR denies the claim."

This "despicable practice was clearly outlawed by the original Dubon decision," he lamented, but "the board has backpedaled and reopened the door for insurance carriers to deny treatment by ignoring the medical records of patients."

Applicant attorney Alan Gurvey of Rowen, Gurvey & Win said he, too, was distressed by the new decision. "It really smells of political involvement," he complained.

The purpose of SB 863 "was obviously cost-containment," he observed, and since the original Dubon decision would have eliminated the cost-savings from SB 863, the decision wasn't able to stand.

Gurvey said he was upset that the commissioners focused on the purpose of SB 863 instead of the beneficent purpose of the workers' compensation system as a whole.

"This is historical," he contended. "This is the day where we decided this is no longer about providing treatment to injured workers."

Under the new en banc decision, Gurvey said there is "no incentive for UR to be done properly." As long as the decision is issued within five days, "that's a valid UR," or so it seems, he reflected. And then the decision goes through IMR, which upholds the UR denial 85% of the time.

He said he plans on trying to raise challenges to UR decisions that lack substance or were clearly made based on an incomplete review of a worker's medical records, although he said he doubted he would be successful since he thought the defense in such cases would just cite the new Dubon en banc decision as establishing the UR was valid.

Indeed, the initial reaction to the decision from defense attorneys was favorable.

Scott Wm. Davenport of Manning & Kass, Ellrod, Ramirez, Trester said he saw the new en banc decision as "a much-needed closing of the loopholes" that were created by the original en banc ruling.

"It will bring finality to IMR decisions and will reduce unnecessary and unwarranted litigation before the boards," he predicted.

Michael D. Peabody of Bradford & Barthel remarked that he didn't find the WCAB's new decision to be surprising. "It simply reiterates the fact, which the Legislature made very clear when SB 863 passed, that the only way to get out of the IMR process is if the original utilization review determination is late," Peabody observed. "In making this decision, the WCAB makes no new law but instead enforces the statute as it is written."

Michael Sullivan of Michael Sullivan & Associates said he too had thought that the WCAB's original en banc decision was based on an "incorrect, and even disingenuous interpretation of the statutory scheme."

Sullivan said he was pleased to see the WCAB had "decided to take IMR seriously," as the now-rescinded February decision had "set us up for chaos."

Published on October 7, 2014 by WorkCompCentral, authored by Sherri Okamoto