The Case That Could Help Overturn Dubon

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The beauty of SB863, and the reason its introduction excited many in the insurance industry, is that it changes the system to allow doctors – not judges – to make medical decisions in workers’ comp cases. This is why everyone is talking about the Dubon case: it goes directly against the advances of SB863, putting medical decisions back into the hands of the Worker’s Compensation Appeals Board (WCAB). The recent Scott Smith v. Plant Construction case presents a possible roadmap for undoing Dubon and reinstating Independent Medical Review (IMR) when a utilization review (UR) has been determined to be defective.

Let’s Review: What Happened in Dubon?

The Dubon case presents an example of an arguably defective UR. Either the UR doctor did not look at all the proper medical reports, or he failed to mention in his own report that he carefully reviewed all the necessary records. A UR doctor must do both. Whatever the case, the UR doctor in Dubon did not comprehensively list everything he reviewed in making his decision. This is likely not the sufficient level of specificity needed to deny medical treatment – which is what the doctor did.

The Dubon case came before the WCAB, which decided to invalidate the defective UR. However, rather than call for a new UR, the WCAB made the treatment decision itself.

SB863 introduced IMR to prevent this sort of thing from happening. The WCAB is a court. It is made up of administrative law judges, not doctors. IMR means an objective doctor looks at the medical necessity of each case. Dubon undermined much of the progress toward IMR: it gave the power back to the judges. Judges may know the law, but they generally don’t know medicine.

Undoing Dubon

Fortunately, the WCAB granted a motion to reconsider Dubon, so there is a chance that the court will reverse its prior ruling. Still, lawyers will have to make a strong case to convince the WCAB to modify the original ruling. This is why the Scott Smith v. Plant Construction case is so important: it sets forth case precedent for the way to handle a possibly defective UR. In other words, the Smith case could provide a roadmap for undoing Dubon.

In the Smith case, we have another example of a situation where the injured worker claimed the UR was defective.The treating physician for the injured worker sent a request for authorization for shoulder surgery, but he did not include an Agreed Medical Exam (AME) report regarding the physical examination of the shoulder or an MRI report showing Smith’s torn labrum. The UR doctor tried to obtain this information from the treating physician but was unable to get it, so he denied the treatment request.

When the WCAB considered the case, it decided that both the treating physician and UR physician failed to adequately communicate. More significantly, the WCAB ruled that the treating physician had 20 days to send an amended RFA. This amended RFA needed to contain all the necessary information, including the AME shoulder examination and the MRI report. If the UR physician still denied treatment, then Smith could request IMR.

This is exactly what the process should look like: doctors making medical decisions, not judges. In the case of an allegedly defective UR, the right thing to do is demand a new, competently completed UR. This is a far superior remedy than the WCAB stepping in and deciding to play doctor.

When the WCAB reconsiders Dubon, it should look at the precedent set by the Smith case. SB863 was designed to stop cases like Dubon from happening. The WCAB should reverse course on the Dubon re-hearing and leave medical decisions in the hands of doctors.

Join the conversation – let us know your thoughts in the comments below.

Tom Swiatek

As Assistant Vice President of Regulatory Services and General Counsel, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.

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