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Oct 07 2014

DUBON MEDICAL DISPUTES SUBJECT TO IMR

Below is the summary of the Dubon II case.

 The following should be noted and are the important parts of the decision in my opinion.  After that is my full summary.

 The WCAB held as follows:

1.            A utilization review decision is invalid and not subject to independent bill review only if it is untimely.

2.            Legal issues regarding the timeliness of a UR decision must be resolved by the Worker’s Compensation Appeals Board, not IMR.

3.            All other disputes regarding a UR decision must be resolved by IMR.

4.            If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with LC § 4604.5.

UR begins with the claims examiner, who may authorize treatment requests without resorting to a formal medical review process. If the claims examiner does not authorize the treatment, the RFA, along with relevant medical records, are submitted to the UR provider. The UR doctor can make a decision based on what has been provided, request additional medical records, discuss the treatment recommendation with the treating physician, and extend the allotted time, if necessary.

Although the failure to comply with the requirements of LC 4610 will not invalidate a UR decision it can result in: (1) the assessment of significant monetary penalties by the AD; (2) increased compensation to the injured worker under section LC 5814 for an unreasonable delay in completing UR.

All requirements of section LC 4610 should be complied with; however, failure to do so will not invalidate a UR decision. A defective UR can be corrected by exercising an internal UR appeal process, if applicable, or through IMR where both parties may correct any defects in the prior submission of records, etc., and for which an appeal process has been established.

Timeliness, however, cannot be fixed. Whether a UR decision is timely as a legal determination and must be decided by a disc WCJ. And untimely UR decision is same as no UR. Without a UR decision, there is nothing to appeal to IMR.

Full summary of Dubon II:

Dubon v. World Restoration, Inc.; State compensation Insurance Fund (EN BANC) (___CCC___):

The WCAB held as follows:

  1. A utilization review decision is invalid and not subject to independent bill review only if it is untimely.
  2. Legal issues regarding the timeliness of a UR decision must be resolved by the Worker’s Compensation Appeals Board, not IMR.
  3. All other disputes regarding a UR decision must be resolved by IMR.
  4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with LC § 4604.5.

Facts:

The WCAB rescinded their en banc decision in to Dubon I.

Applicants treating physician requested authorization for back surgery as well as authorization for various post-surgical services.

SCIF submitted to the matter to utilization review. Utilization review was performed by Dr. deGrange, a board-certified orthopedic surgeon, who denied the authorization for the surgery and the post-surgical services as not medically necessary.

Nothing in the record reflected that the UR physician reviewed the report of the AME, the Discogram report, the lumbar MRI, the EMG/NVC study or some other medical reports.

The UR physician concluded that there was no documented imaging of nerve root compression or of a moderator greater stenosis at each of the requested level; there was no evidence that conservative treatment had failed; and there was no documentation of a conditional/diagnosis for which spinal fusion was indicated.

The primary treating physician invoked the internal UR process. A second UR denial based on the report of a Kevin Mark Deitel M.D., a board-certified orthopedic surgeon denied the request for surgery and was identical to the report of Dr. deGrange in all significant respects.

Applicant filed an IMR application and a DOR for an expedited hearing asserting that the UR denial was defective, because among other things, there was insufficient medical review.

The expedited hearing took place and the issues that were raised were need for further medical treatment and whether IMR is the exclusive remedy per section 4610.5.

The WCJ issued a decision holding the dispute over claimed procedural defects in defendants UR denial must be resolved through IMR. The WCJ stated that the failure of the UR reviewing physician to review all the relevant medical records was a critical error because the determination is made in part based on the severity of pain, duration of pain radiculopathy as well as a review as to whether conservative care is been undertaken. The WCJ added that a UR physician is compelled by ACOME to look at objective testing performed coupled with subjective complaints, history of radiculopathy, and history of conservative care and that he complete review of applicant’s medical condition and prior treatment is especially important when utilizing the ACOME guidelines in determining whether treatment should be authorized.

The WCJ found the issue of need for surgery and medical care should be determined by the IMR process and therefore the court could not award the treatment requested.

Applicant filed a petition for reconsideration.

The WCAB granted reconsideration and in Dubon I held that IMR as follows:

  1. IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.
  2. A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of UR decision. Minor technical or immaterial defects are insufficient to invalidate a defendants UR determination.
  3. If a UR is found invalid, the issue of medical necessity is not subject IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
  4. If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR process if requested by the employee.

The WCAB then rescinded the WCJ’s decision and returned the matter to the trial level for further proceedings and determination whether the spinal surgery is reasonably required.

SCIF filed a petition for reconsideration on the following grounds: (1) That LC § 4610.5 establishes that any dispute over a UR decision including disputes over its timeliness and procedural validity shall be resolved through IMR; (2) even assuming the WCAB has authority over you are timeliness and procedural validity issues, the WCAB should not determine medical necessity; instead, if the WCAB determines that a defendants UR decision is invalid, the WCAB should simply order that the UR decision cannot be considered by IMR when it determines medical necessity; and (3) it is the responsibility of the treating physician, not the defendant, to provide all documentation in support of a treatment request.

The WCAB granted reconsideration for further study and then issued the following decision:

The WCAB began by reviewing the legislative history of UR and IMR.

Following that review they concluded that a UR decision is invalid and not subject to IMR only if it is untimely.

The WCAB indicated that the Supreme Court in Sandhagen (73 CCC 981) found that section 4610 requires that every employer shall establish a utilization review process in compliance with this section. To be in compliance with section 4610, there are certain procedural requirements that shall be met, including that a UR decision shall be made within specified deadlines. As used in the Labor Code shall is mandatory and language.

Were a UR decision is not timely rendered in compliance with these mandatory deadlines, there is no dispute for IMR to resolve within the meaning of section 4610 (g) (3) (A) and (B) and section 4610.5 (a), (b), and (k). Citing the case of Elliott v. WCAB (Court of Appeal, 75 CCC 81) a dispute does not legally arise unless the employer props utilization review in a timely fashion.

The Supreme Court in Sanhagen concluded based on a review of the legislative history that a defendant must conduct you are with respect to an employer’s request for treatment and that this UR must be timely.

Accordingly, the Board found that where a defendants UR decision is untimely, it is invalid and not subject to IMR. If a treatment request is denied without medical review, there is no UR decision to appeal to IMR.

The WCAB concluded that legal issues regarding the timeliness of a UR decision must be resolved by the WCAB not IMR.

The WCAB concluded that IMR physicians only resolve medical necessity disputes.

The WCAB stated that there is no question that 4610 and 4610.5 provide that disputes over UR decision shall be resolved by IMR. Section 4610 (g) (3) (A) states that if a UR decision does not fully approve a treatment request, the dispute shall be resolved pursuant to section 4610.5, if applicable.

LC 4610.5 applies to any dispute over utilization review regarding a decision for treatment for injury occurring on or after June 1, 2013, any dispute over a utilization review decision if the decision is communicated to the requesting physician on or after July 1, 2013 regardless of the date of injury. Subsection (b) provides that a dispute described above shall be resolved only in accordance with this section. Subsection € provides that a utilization review decision may be reviewed repealed only by independent medical review pursuant to this section. Subsection (k) provides the AD shall expeditiously review IMR request and if there appears to be any medical necessity issue, the dispute shall be resolved pursuant to an independent medical review.

The WCAB further pointed out that various provisions of unqualified section 1 of SB 863 expressly declare a legislative intent that IMR is to be the vehicle for reviewing a UR decision.

The Board went on to state, however Labor Code §§ 4610.5 and 4610.6 expressly circumscribe the role of an IMR physician to evaluate the medical necessity of the proposed treatment. Section 4610.6 (a) states that IMR shall be limited to an examination of the medical necessity of the medical necessity of the disputed medical treatment. These provisions of section 4610.5 and 4610.6 are consistent with the unqualified section 1 € of SB 863, which declares a legislative intent that having medical professionals ultimately determine the necessity of requested treatment furthers the social policy of this state.

Nothing in SB 863 suggests the IMR physicians will have either the legal expertise or resources to decide whether a UR decision was untimely. To the contrary, SB 863 consistently refers to the IMR physicians as medical professionals. Additionally, although section 4610.5 specifies what documents are provided to the IMR organization, Labor Code § 4610.5 nowhere indicates that IMR physicians are to be provided with documentation relating to the timeliness of defendants UR decision or with legal authority relating to the timeliness of UR.

Accordingly the WCAB found that UR timeliness are not issues of medical necessity and cannot be resolve by IMR.

The timeliness of a UR decision is a legal dispute within the jurisdiction of the WCAB. Legal disputes over UR timeliness must be resolved by the WCAB as the WCAB has exclusive jurisdiction over claims for recovery of compensation, or concerning any writer liability arising out of or incidental thereto. Labor Code §§ 4610.5 and 4610.6 limits IMR to disputes over medical necessity.

All other disputes regarding a UR decision must be resolved by IMR.

In addition to timeliness, UR decision must be in compliance with other elements of section 4610. With the exception of timeliness all other requirements go to the validity of the medical decision or decision-making process. The sufficiency of medical records provided, expertise of the reviewing physician and compliance with him to US are all questions for the medical professional.

If an injured worker disputes a UR decision, section 4610 mandates that it shall be resolved in accordance with section 4610.5 if applicable. Similarly, sections 4610.5 and 4610.6, specifically provides that where there is a dispute regarding a UR decision on medical necessity the dispute shall be resolved only by IMR.

With the exception of timeliness, all defects and UR process can be remedied when appealed to IMR.

The legislator has made it abundantly clear that medical decisions are to be made by medical professionals. To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.

The WCAB reasoned that the legislative intent is clear. IMRs sole mechanism for reviewing a UR physician’s opinion regarding the medical necessity of the proposed treatment.

The WCAB held that where a UR decision is timely, IMR is the sole vehicle for reviewing the UR decisions expert opinion regarding medical necessity of a proposed treatment, even if the UR process does not fully comply with section 4610 requirements.

The WCAB stated that there holding does not imply that UR is not important nor the compliance with section 4610 is unnecessary. UR is a critical part of the medical treatment review process. If done properly, UR is effectiev, expeditious and inexpensive.

The Procedrue:

UR begins with the claims examiner, who may authorize treatment requests without resorting to a formal medical review process. If the claims examiner does not authorize the treatment, the RFA, along with relevant medical records, are submitted to the UR provider. The UR doctor can make a decision based on what has been provided, request additional medical records, discuss the treatment recommendation with the treating physician, and extend the allotted time, if necessary.

Although the failure to comply with the requirements of 4610 will not invalidate a UR decision it can result in: (1) the assessment of significant monetary penalties by the AD; (2) increase compensation to the injured worker under section 5814 for an unreasonable delay in completing UR.

All requirements of section 4610 should be complied with; however, failure to do so will not invalidate a UR decision. A defective UR can be corrected by be there exercising an internal UR appeal process, if applicable, or through IMR were both parties may submit records, and for which an appeal process has been established.

Timeliness, however, cannot be fixed. Whether a UR decision is timely as a legal determination and must be decided by a disc WCJ. And untimely UR decision is same as no UR. Without a UR decision, there is nothing to appeal to IMR.

If the UR is untimely the WCJ can only award treatment if there is substantial evidence supporting the legal necessity of the treatment requests.  If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with section 4604.5.

If the UR decision is untimely, the injured employee is nevertheless entitled only to reasonably required medical treatment and it is the employee’s burden to establish his or her entitlement to any particularly treatment, including showing either that the treatment falls within the presumptively correct MTUS or that the presumption has been rebutted. Moreover, to carry this burden, the employee must present substantial medical evidence.

The WCAB concluded the issue of the need for surgery was not moot. Will

The WCAB ordered their decision after reconsideration rescinded, the petition for recon filed by applicant is denied and the findings and order of the WCJ is affirmed.

One Commissioner wrote a concurring opinion. The concurring Commissioner agreed with the majority’s holding regarding the merits of the case.  However the Commissioner did not think it was necessary to reach the merits. She would have dismissed the defendant’s petition for reconsideration and applicants additional petition for reconsideration and vacate the first Dubon decision as the issue need for surgery was moot. The concurring Commissioner stated that even assuming the issue of applicant’s entitlement to surgery was not moot when they issued the first decision, it has since become moot because the issue went to IMR (which is where it properly belongs) and the applicant is now filed a petition with the WCAB appealing the IMR determination.

Although the concurring Commissioner unequivocally agrees with the majority’s holding, she maintains that it was not necessary to reach the merits in this case.

A second Commissioner issued a concurring and dissenting opinion. This Commissioner agreed that an untimely medical determination is not subject to independent medical review. This Commissioner agreed that the decision in Dubon I was correct.

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