California: WCAB Applies Dubon in Two Noteworthy Panel Decisions

Two noteworthy panel decisions issued by the WCAB provide further guidance on the Independent Medical Review process in light of the Dubon en banc decision.

In the first case, the WCAB affirmed the WCJ’s finding that the defendant’s utilization review denials of the applicant’s request for Xyrem and Botox treatments for her orthopedic injuries and fibromyalgia were invalid based upon the failure of all reviewing physicians to sign their reports and the defendant’s failure to provide the reviewing physicians with relevant agreed medical examiner reports explaining the necessity of the requested treatments. However, the WCAB deferred its determination as to whether the requested medical treatment was reasonable and necessary, when the WCAB concluded that finding the utilization review is invalid does not mandate that the requested treatment be authorized, that pursuant to the decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), the applicant must still provide substantial medical evidence to establish that the requested treatment is reasonable and necessary, and that, here, the WCJ erred by ordering the defendant to provide the requested treatments without making a finding that the treatments were reasonable and necessary. See Weilmann panel decision.

In the second case, the WCAB rescinded the WCJ’s finding that the applicant’s request for left knee replacement surgery, submitted on or after 7/2/2013, was subject to the independent medical review process under Labor Code §§ 4610 through 4610.6, as implemented by SB 863, when the WCJ also concluded that the defendant’s utilization review process was defective under 8 Cal. Code Reg. § 10451.2, because it incorrectly stated that the applicant’s left knee was a denied body part. The WCAB found that the WCJ, on remand, was required to make a determination regarding whether, pursuant to the recent decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), there were “material procedural defects” that undermined the integrity of the defendant’s utilization review decision, or if there were only “minor technical or immaterial defects” that did not invalidate the utilization review determination, and that if the WCJ determines that there were “material procedural defects” compromising the utilization review, then the WCJ must find the disputed request for left knee replacement surgery is based upon substantial medical evidence, as the treatment dispute would not be subject to the IMR process. See Gomez panel decision.

These noteworthy panel decisions will be added to the LexisNexis Services.

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