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Workers' Compensation

California: Invalid Utilization Review Determinations in a Post-Dubon II World

When UR decision did not address issue raised by treating physician’s request for authorization, there was no timely UR

In Arroyo v. Inland Concrete Enterprises, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB granted removal and rescinded the WCJ’s finding that the defendant’s 2/12/2015 utilization review (UR) determination was timely, thereby precluding the WCAB from exercising subject matter jurisdiction over the applicant’s request for medical treatment.

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Here, the treating physician requested authorization to replace the applicant’s broken motorized scooter which the defendant had earlier provided to the applicant. Although the UR decision issued within the time allowed by Labor Code § 4610(g)(1) [LC 4610], the defendant’s UR decision did not address the issue of the replacement scooter and instead considered whether the use of the motorized scooter was medically supported.

The WCAB concluded that because the UR decision did not address the issue raised by the treating physician’s request for authorization, there was no timely UR and the dispute could be determined by the WCJ based on substantial medical evidence, consistent with Labor Code § 4604.5 [LC 4604.5] and Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 [79 CCC 1298] (Appeals Board en banc opinion) (Dubon II).


In Dubon  v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc) (Dubon II), the WCAB found that the Independent Medical Review (IMR) was the only process  to resolve disputes over the medical necessity of treatment requests. The decision further stated that a UR determination could only be found invalid if the UR determination was untimely. Finally, the commissioners concluded that if the UR decision was found to be untimely, the WCAB, based on substantial evidence, could then determine the injured worker’s entitlement to medical treatment.

What is significant about Arroyo is that the commissioners are finding a UR determination invalid for a reason other than untimeliness. Indeed, the panel in Arroyo specifically observed that since defendant’s UR did not address the specific treatment issue raised by the treating physician, “there is no timely UR and the dispute may be determined by the WCJ based upon substantial medical evidence consistent with Labor Code Section 4604.5”.

Thus, according to Arroyo, a UR determination that does not address the issue raised by the treating physician is no different than if no UR had occurred in the first place. This begs the question, other than an untimely UR determination or a UR determination that does not specifically address the issue raised by the treating physician, are they not other circumstances in which the UR determination would clearly be considered “invalid” and therefore “untimely”?

Labor Code Section 4610(a) provides that “utilization review” functions to review based on “medical necessity” to cure and relieve treatment recommendations made by physicians. Labor Code Section 4610(c) states that the UR process, specifically the policies and procedures that define the UR process, shall “ensure that decisions based on the medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule for medical treatment utilization adopted pursuant to Section 5307.27”. Labor Code Section 5307.27 [LC 5307.27] effectively provides that prior to December 1, 2004, the administrative director, in consultation with the Commission on Health and Safety and Workers’ Compensation, shall adopt a medical treatment utilization schedule (MTUS).

According to the Labor Code, the very function of UR is to match the treating physician’s treatment recommendation up with the applicable treatment guideline. If the MTUS does not address the treatment, then Labor Code Section 4610.5 [LC 4610.5] provides a hierarchy of authority for the reviewer to consider.

Additionally, California Code of Regulations, title 8, Section 9792.25 [R 9792.25] states that only the MTUS is presumptively correct on the issue of extent and scope of medical treatment and diagnostic services addressed in the MTUS for the duration of the medical condition.

Based on these statutes, it is easily argued that the primary function of UR is to make sure a specific treatment recommendation complies with the applicable treatment guideline. Where the UR reviewer does not appropriately apply the medical treatment guideline does that not invalidate the UR determination? If the UR reviewer is not appropriately applying the treatment guideline, is that significantly different from the UR reviewer not specifically considering the treating physician’s recommendation?

Panel cases like Arroyo highlight the fundamental problem with the WCAB’s decision in Dubon II. There are many instances where a UR determination is invalid on its face and the WCAB informs the parties that the issue still has to proceed through the IMR process. Cases like Arroyo are a hopeful sign that the commissioners will look more to the purpose of UR and hold the UR process accountable to its stated purpose. While this may prove to be a slippery slope, it is fundamentally unfair for treatment to be denied or delayed based on a UR determination that is fundamentally flawed.

Read the Arroyo noteworthy panel decision.

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