Workers' Compensation

California: A Post-Dubon II Game Changer?

An interesting argument has been raised: Should an applicant be allowed to rebut the MTUS guidelines before the WCAB?

In McFarland v. The Permanente Medical Group, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split WCAB panel, affirming the WCJ, held that pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (lexis.com) [79 CCC 1298 (Lexis Advance) (Appeals Board en banc opinion) (Dubon II), the WCAB lacked jurisdiction over a treating physician’s request for medical treatment in the form of epidural steroid injections to treat the applicant’s industrial back injury. The WCAB found that the defendant timely issued a utilization review (UR) non-certification denying the requested treatment based on the Medical Treatment Utilization Schedule (MTUS) guidelines in 8 Cal. Code Reg. § 9792.25(b) and (c) (lexis.com) [8 CCR 9792.25 (Lexis Advance)]. The WCAB also held that it had no authority to determine the constitutionality of the Independent Medical Review statutes as sought by the applicant based on her inability to appeal a noncompliant UR determination.

Commissioner Sweeney, dissenting from the majority panel decision denying jurisdiction over the applicant’s appeal from an adverse UR determination based on the MTUS guidelines, would find that the applicant should be allowed to rebut the MTUS guidelines before the WCAB. Commissioner Sweeney explained that Labor Code § 4604.5 (lexis.com) [LC 4604.5 (Lexis Advance)] provides that the MTUS guidelines are presumptively correct but does not provide a procedure for determining whether scientific medical evidence establishes that a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of the industrial injury. While the majority of the WCAB panel concluded that the procedure for making this determination found in the Labor Code §§ 4610.5 and 4610.6 (lexis.com) [LC 4610.5, 4610.6 (Lexis Advance)] Independent Medical Review (IMR) process is consistent with public policy favoring that medical professionals determine medical necessity issues, Commissioner Sweeney maintained that whether a party has rebutted the presumption affecting the burden of proof is a legal question that must be determined by a court of law—as such, the determination requires the weighing of facts and evidence—that Labor Code §§ 4604 and 5304 (lexis.com) [LC 4604, 5304 (Lexis Advance)], together, give the WCAB jurisdiction to determine medical treatment guideline controversies arising under Labor Code § 4604.5, independent from the procedures in Labor Code § 4610.5 and Dubon II, which apply to the UR/IMR process for resolving “medical necessity” issues based on the established guidelines, that the UR decision here denied the applicant’s medical treatment based upon the MTUS, and that, therefore, the applicant should be entitled to present evidence that she rebutted the MTUS before the WCAB.

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COMMENTARY BY ROBERT G. RASSP, ESQ.:

"This case is extremely important if anything for the dissenting opinion. The dissenting commissioner hit it on the head where she states that if there is a rebuttable presumption, the only place to do a rebuttal is in a court of law and not via an administrative process such as UR/IMR. It is an interesting argument and provides fodder for the applicant's attorney who will surely take a writ on this case, armed with the commissioner’s dissent."

Read the McFarland noteworthy panel decision.