California: The Medical Treatment Benefit and Subject Matter Jurisdiction

Recently, the WCAB issued a panel decision, Payne v. Federal Express, 2017 Cal. Wrk. Comp. P.D. LEXIS 243. In Payne,  the panel held that an agreement in a Compromise and Release with open medical approved years ago which provides that the AME would determine any future issues of medical necessity of treatment controls over and is not preempted by the UR/IMR process. To the extent Payne followed a previous panel case, Bertrand v. City of Orange, 2014 Cal. Wrk. Comp. P.D. LEXIS 342, the holding in Payne is not necessarily new. However, the Payne decision does touch on an issue that remains an issue of great controversy and interest in the Workers’ Compensation community. Specifically, the issue is what exactly is the WCAB’s jurisdiction over medical treatment disputes post-IMR and post-SB863?

The defendant in Payne argued that the WCAB completely lacked subject matter jurisdiction over medical treatment disputes, citing the two recent Court of Appeal decisions, Stevens v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074 and Ramirez v. Workers' Comp. Appeals Bd. (2017) 10 Cal.App.5th 205. The panel responded by stating, in its opinion “that bald assertion is contrary to statutes and an overstatement of the holdings” of both Stevens and Ramirez.

In Ramirez, however, the Third District Court of Appeal specifically noted, “In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”].) Whether the utilization reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by independent medical review.

Though the panel decision in Payne is well-written and thoughtful, there continues to be a substantial question of what is the WCAB’s role when it comes to medical treatment disputes? Is it completely lacking subject matter jurisdiction as the defendant in Payne argued or does the WCAB have jurisdiction to address medical necessity where the Utilization Review decision is untimely (Dubon II)?

In conclusion, whether this panel is correct in stating that the Appeals Board continues to be the exclusive forum to try and determine disputes relating to compensation or whether the defendant in Payne was correct that the Legislature has effectively removed subject matter jurisdiction from the WCAB with regard to medical treatment benefits, there is no dispute that the WCAB’s continuing role in resolving medical treatment disputes will continue to be a matter of great controversy.

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