Moving Forward from Dubon I: In Dubon II the WCAB Returns Medical Decisions to Doctors, Not Judges

| | Utilization Review

Medical Decisions
In September, 2014, I wrote about the Workers’ Compensation Appeals Board’s (WCAB) troubling decision in the Dubon case. I also set forth some theories about how it could be overturned. To quickly summarize: the WCAB found that the utilization review (UR) in the Dubon case was defective. Rather than calling for an independent medical review (IMR) as required by SB863, the WCAB made the treatment decision itself.

Understandably, the WCAB’s decision upset many in the insurance industry: IMR was introduced so that doctors – not judges – would make medical decisions. In the Dubon case, we saw judges acting (inappropriately) as doctors.

Today, we can see some good from Dubon II: the WCAB’s new analysis clearly explains when a case should proceed to IMR and when it should not.

The New Ruling: What Makes a UR Defective?

After reconsidering Dubon, the WCAB issued an en banc ruling, confirming that the UR was defective. The UR doctor did not list all of the medical records he reviewed to make his decision, and the UR process was therefore invalid.

So while the WCAB’s opinion of the UR stayed the same, the analysis changed dramatically regarding what to do with the UR. The WCAB stated that a UR is invalid and does not proceed to IMR if – and only if – it is untimely. In nearly any other situation, the case proceeds to IMR. In other words, the WCAB only makes decisions about treatment – after examining substantial medical evidence – if the UR is invalidated because it is untimely. Timeliness is a legal issue, and is not something that an IMR doctor is trained to analyze. If the UR is invalidated for any other reason, such as doctor’s failure to cite all of the medical records he or she reviewed, then the case proceeds to IMR, as dictated by SB863.

The clarity of the new ruling stands in stark contrast to the ambiguity of the original Dubon decision, which left stakeholders wondering what makes a UR defective. Indeed, in Dubon I the WCAB stated that a defective UR was “a defect that undermined the integrity of the UR determination.” That opinion left the issue open to interpretation and argument. Now, we know for sure: if a UR is defective for any reason other than timeliness, it goes to IMR.

The Value and Efficacy of UR

Another interesting takeaway from Dubon II was the WCAB’s strong stance on the value of UR. On page 14 of the new Dubon decision, the WCAB writes, “UR is a crucial part of the medical treatment review process. If done properly, UR is effective, expeditious, and inexpensive.” The WCAB goes on to cite the California Constitution, Article 14, Section 4 (requiring a system of workers’ compensation for all workers in the state).

Thanks to Dubon II, we now know when an allegedly defective UR proceeds to IMR, and when it does not. We also know how much the WCAB values properly performed UR. In many ways, the damage of the first Dubon ruling has been reversed.

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.