California: W.C.A.B. to Review Dubon Decision

The W.C.A.B. has granted for further study the Petition for Reconsideration filed by SCIF in the recently issued en banc decision in Dubon v World Restoration. The Defendant had filed the Petition for Reconsideration almost 60 days prior to the order of the W.C.A.B. and time for a decision to issue would have run on 5/23/14. The W.C.A.B.’s grant should not be interpreted as expressing any opinion on the potential final result in this matter but more realistically it is a time based decision allowing the W.C.A.B. to give full consideration to the defendant’s appeal. The W.C.A.B. has just issued another en banc decision several days ago which undoubtedly consumed a good deal of W.C.A.B. resources leading up to the decision and additionally had a change at the W.C.A.B. with the departure of Commissioner Moresi and appointment of Katherine Zalewski to the W.C.A.B. Given the complexity of the issues in Dubon, and the amicus briefing that has been submitted (but not yet accepted by the W.C.A.B.), it is not surprising that the Board elected to give itself more time to review this issue and provide a considered opinion.

“Taking into account the statutory time constraints for acting on the petition, and based upon our initial review of the record, we believe reconsideration must be granted in order to allow sufficient opportunity to further study the factual and legal issues in this case. We believe that this action is necessary to give us a complete understanding of the record and to enable us to issue a just and reasoned decision. Reconsideration will be granted for this purpose and for such further proceedings as we may hereinafter determine to be appropriate.”

The W.C.A.B. is also certainly aware that their holding in this matter has been extremely controversial and, regardless of the outcome, will not only be subject to intense scrutiny and debate but also to appellate review. The additional time the W.C.A.B. has given itself will allow the W.C.A.B. to consider not only the arguments it is facing in this petition, but the anticipated arguments that are going to be raised in the near certain further appellate efforts.

The hallmark of the brief by SCIF is, notwithstanding the language relied upon the W.C.A.B. from the Sandhagen case, that the landscape on medical treatment decision making has changed with the passage of SB 863 and the adoption of the IMR process to review UR decisions. SCIF has argued that even if the W.C.A.B. is correct that Sandhagen remains good law after the passage of SB 863, the W.C.A.B. is limited to determining that UR was defective but not permitted to make the medical determination regarding treatment. SCIF argues the W.C.A.B. has ignored the expressed public policy established in Section 1 of SB 863 that medical decision making should be done by physicians and not WCJs.

SCIF has been joined in its briefing by an excellent and very thorough brief prepared by Ellen Langille on behalf of the California Chamber of Commerce. The Chamber brief will not be considered by the W.C.A.B. unless the Board decides to accept the brief. Should the W.C.A.B. accept the Chamber’s brief, it is possible the W.C.A.B. may invite other amicus briefs, much as it did in the Almaraz/Guzman and Ogilvie cases. It should be noted in those cases the W.C.A.B., after further extensive briefing, significantly modified its opinion in Almaraz/Guzman while essentially readopted its decision in Ogilvie.

The W.C.A.B. has noted the original decision remains published and binding:

“Pending the issuance of a Decision After Reconsideration, the Appeals Board’s February 27, 2014 en banc opinion in Dubon shall remain in effect and binding. (Lab. Code, § 5910; Cal. Code Regs., tit. 8, § 10341.)”

Comments and Conclusions:

There really are no conclusions to be drawn from this order, nor even any inferences that can reasonably be drawn. This order is almost certainly simply a time related factor given the Board’s workload and the complexity and controversy of this decision. It seems unlikely the W.C.A.B. is going to reverse itself where the original opinion was unanimous and the change of a single commissioner, even if she ends up disagreeing with the rest of her colleagues (not a certainty by any means) is not enough to alter the result.

What we can hope for is, perhaps, some moderating of the opinion, much as occurred in the Almaraz/Guzman case. The W.C.A.B. may revisit and perhaps provide some clarifying language on some of the issues decided in the original decision. For one thing, the W.C.A.B. could give some additional guidance on what constitutes an “immaterial defect” in UR. So far, almost everything the W.C.A.B. has considered has been material and considered sufficient to invalidate the UR decision. In this author’s mind, the W.C.A.B.’s requirement that the claims administrator is obligated to determine and then provide relevant medical information to the UR review remains one of the more troubling aspects of the original decision. Given the complete lack of statutory or regulatory support for that concept (the W.C.A.B. cites Labor Code § 4610, which does not even discuss this issue) and considering the five-day time frame to not just review but also issue a UR determination, the requirement effectively makes UR untenable. The AD’s regulation (9792.9.11) clearly puts the burden on the requesting physician to support the Request for Authorization (RFA), as does the RFA form. In the IMR process, the claims administrator is allowed 15 days to send the medical records to the reviewer, is given specific instructions as to which records to send, and then there is an additional 30 days allowed to make the determination. Expecting claims administrator to be able to identify the relevant portions of the medical file (which really requires an understanding of the algorithms in the MTUS), forward them to the UR reviewer and then obtain a review and decision in five days would seem to defy logic.

Footnote

1. There is an oddity in the Regulations links on the DWC’s website. ADR 9792.9.1 is not listed in the current lineup of regulations. Therefore, in order to find the current language it is necessary to go to the approved regulations page of the Medical Unit portion of the website and look at the Regulations approved on Feb 12. 2014 to find that approved regulation. It is included in the IMR regulations.

© Copyright 2014 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.