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Rulings Concerning Medical Treatment Disputes

By W. Rod McClelland, Jr.


A Defect Affecting the Integrity of the Utilization Review Process Gives the WCAB Jurisdiction to Issue Rulings Concerning Medical Treatment Disputes


Dubon v. World Restoration, Inc., SCIF (2014) 79 Cal. Comp. Cases 313.


An IMR determination is presumed correct and can only be set aside on the following grounds, Labor Code section 4610.6(h):


  1. The administrative director acted without or in excess of the administrative director’s power.
  2. The determination was procured by fraud.
  3. The IMR was subject to a material conflict of interest in violation of Labor Code section 139.5.
  4. The determination was the result of bias.
  5. The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge, based on the information submitted for review, and not a matter subject to expert opinion.


The Dubon case stands for the proposition that the Workers’ Compensation Appeals Board has jurisdiction to make a ruling concerning a medical treatment dispute when a material procedural defect undermines the UR process.  Any such defect renders the UR process null and void.


This position is supported by Labor Code section 4610.6(I).  This labor code section states that if an IMR decision is reversed, it goes back for another IMR.  The WCAB, Court of Appeals, and even the Supreme Court of the United States, has been divested of jurisdiction concerning IMR decisions.


The WCAB has applied Dubon in two recent noteworthy panel decisions, finding material procedural defects in the utilization review process, when the defendants did not provide medical reports reasonably needed for the UR physicians to make a valid determination.  In Page v. Barman Transport, 2014 Cal. Wrk. Comp. P.D. LEXIS ., the WCAB affirmed the Workers’ Compensation Judge’s finding that the applicant was entitled to medical treatment, as requested by his requesting physician, including surgery, for an admitted right ankle injury.  Defendant’s UR process was materially flawed, because the UR physician issued a determination without information regarding the applicant’s medical history.


In Tabaracci v. Waste Management, 2014 Cal. Wrk. Comp. P.D. LEXIS., the WCAB affirmed the WCJ’s findings that the applicant was entitled to medical treatment for a spine injury as requested by his treating physician, including discectomy and fusion surgery.  The WCAB affirmed the WCJ’s finding that the treatment recommendations were not subject to Independent Medical Review pursuant to holding in Dubon.


The WCAB found that defendant undertook two separate utilization reviews to determine the reasonableness and necessity of the requested treatment, but both were materially defective.  Defendant initially failed to provide the utilization review physician with an MRI film upon which the treating physician relied in making his surgical treatment recommendations. Although the MRI report was provided to the utilization review physician in the subsequent utilization review, the second utilization review process was defective based upon the defendant’s failure to provide the utilization review physician with sufficient medical records, including the primary treating physician’s records.


Dubon, and the above-referenced decisions, confirm defendants must ensure no procedural defects with the UR process, in order for an IMR decision to be binding.  If there are UR procedural defects with regard to the timing of the denial, and/or the provision of the appropriate information, the WCJ is placed in a position to rule upon treatment being medically necessary or not.  However, if there are no procedural defects concerning the UR process, the IMR decision controls.


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