Dubon II

UR disputes, including procedural defects, shall be resolved only through IMR, except for a late UR decision.




Please recall that on 2/27/2014, the WCAB issued its first en banc decision (Dubon I) in which it held that a UR decision was deemed invalid if it suffered either from a “material procedural defect” or was otherwise untimely. In either instance, the disputed medical necessity issue would therefore default to the WCAB. The WCAB could then have jurisdiction to determine the medical necessity decision, subject to the applicant sustaining his/her burden of proving necessity. In effect, the WCAB had determined that a late UR decision, as well as one which suffered from a material procedural defect, was an “invalid” one, and not subject to IMR.i


On 5/22/2014, the WCAB granted reconsideration in order to further study the issues raised by SCIF, in its reconsideration petition. However, the findings in Dubon I were still in effect, pending further WCAB Order.


On 10/6/2014, the WCAB issued its Opinion and Decision After Reconsideration, or what will be termed “Dubon II.” This thirty one page decision also contains a partial dissent from one Commissioner, but the findings are these:

• Dubon I is modified to hold that “a UR decision is deemed invalid only if it is untimely”ii
• An untimely UR decision is not subject to IMR
• Only the WCAB has authority to determine the untimeliness of a UR decision, not IMR. This is because the untimeliness issue is a “legal” dispute, which is within the WCAB’s jurisdiction
All other procedural or other disputes over UR will be determined only through IMR, subject to the appeals process within the statute and regulations. These disputes would include, among others: (1) The sufficiency of whether the proper or accurate medical records, including physician reports, were ever sent to the Physician Reviewer;iii (2) Whether the Physician Reviewer considered these records and if so, which ones: (3) Whether ACOEM or MTUS was properly applied; (4) Incomplete listing of medical records sent to UR; (5) Physician Reviewer fails to state his/her clinical reasoning, including proper use of medical criteria. ALL OF THESE ISSUES WILL BE DETERMINED ONLY BY IMR, NOT THE WCAB.
• When a UR decision is timely, then IMR is the “sole vehicle” `for reviewing UR expert opinionsiv
• The “bottom line?” Medical decisions, including the use of medical criteria, what documents were referred to UR, and the like, shall be left to the expertise of medical professionals. And, the legal dispute over timeliness shall be left to the expertise of the WCAB.
• The WCAB held that defects in procedural compliance can be fixed either in the 2nd appeal process, if any or in the IMR process (such as furnishing previously unfurnished medical records)


How does this apply right now?
All of these issues are remedial, so they take effect, regardless of the date of injury. This decision takes effect on the date of issuance. It is very likely, if not probable, that applicant will file a new reconsideration petition, since Dubon II does make further findings. But, this will almost certainly be denied, after which it is very highly likely, a writ of review will be filed with the court of appeal.

In the meantime, we can take the position that this decision impacts all current cases where these issues remain pending, including any pending Expedited Hearing, where the UR decision was attacked for procedural defects. (not timeliness)

It is recommended that you demand that these matters be taken off calendar by the applicant’s attorney, so that you do not have to attend unnecessary hearings on what is a moot issue, under this new decision.

The same would apply to any filed DOR for Expedited Hearing, to which the WCAB should be asked not to set these matters, in light of this new decision.

And going forward?
In light of Dubon II, you can expect that some applicant’s attorneys will be even more aggressive in transmitting documents to Maximus and you will probably see more ADVOCACY LETTERS, pointing out defects or problems with the UR process. Please note that in the latest regulations adopted 2/12/2014, 8 CCR 9792.10.5(b) permits “reasonable information supporting the position that the disputed medical treatment is or was medically necessary, including all information provided by the employee’s treating physician, or any additional material that the employee believes is relevant.” (emphasis added) There is no indication what can be sent but a detailed “advocacy letter” may be something we will see more of.

This would be undertaken in order to “set up” an appeal to any adverse IMR decision.. But of course, this will be cumbersome and time-consuming, and many attorneys will simply not take the time to do so. And some will!

We can also expect some “advocacy letters” coming from the PTP’s.

You may even see some attorneys demand the CV of the “Expert Reviewer” (UR only) and demand proof of competency to conduct a review in the area of medicine under consideration.

What about penalties?
The WCAB discussed this and concluded that the essential remedies for a non-compliant UR decision would be found in the realm of the AD penalty structure and also 5814 delay penalties.

Under Lab C 4610.1, the employer is not subject to a delay penalty if it timely conducts UR and that a final WCAB decision or one by IMR, determining medical necessity, does not prove a delay penalty. But his exemption also assumes that there has bene no delay in UR itself.

The raising of penalties is interesting, since applicant’s attorneys might argue that a non-compliance with a UR regulation, other than being late, would render that decision defective and that any delay caused by the invalid decision would be the basis for a 5814 delay penalty. Of course, the WCAB would then have jurisdiction over whether the “delay” was legally valid, based upon compliance. So, perhaps the “compliance” issue does return to the WCAB, in the form of a penalty hearing.

iThe WCAB then held that “IMR solely resolves disputes over medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.” (Dubon I, 79 CCC 315)
Dubon II (supra) pp 9
iiiIn Dubon I, applicant contended that the UR Physician Reviewer had not been provided with a number of medical reports from the PTP, consulting surgeon and even the AME, including diagnostic tests, including a discogram, EMG/NCV study and a lumbar MRI.
ivDubon II supra pp 14


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