California: A Hint of Things to Come in WCAB's Re-Review of Dubon?

In Garcia-Picen v. Tight Quarters, Inc., the Appeals Board, in a split panel opinion, held that the WCJ incorrectly determined that the defendant’s UR of a treating physician’s request for authorization to provide viscosupplementation injections to treat an applicant’s 3/16/2012 admitted industrial right knee injury was defective because it was not signed by the UR physician.

However, the Appeals Board found that the UR may be defective on the basis that the UR physician was not aware of the applicant’s relevant medical history when she considered the treating physician’s medical treatment request, and that in order to assure proper a UR determination, the UR physician should be informed that the injections were requested to complete the course of treatment after the applicant underwent two knee surgeries.

Contrary to the defendant’s assertion, UR is not “presumed correct on the issue of the extent and scope of medical treatment,” as the presumption created by Labor Code § 4604.5(a) only applies to “medical treatment utilization schedule,” explained the Appeals Board.

The Appeals Board also held that the WCJ’s reliance on Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), in her report on reconsideration was misplaced as the independent medical review (IMR) process was not applicable in this case, the reason being that the UR denial was issued prior to the 7/1/2013 implementation of SB 863.

Commissioner Sweeney concurred with the majority that the WCJ incorrectly determined that the defendant’s UR was defective because it was not signed by the UR physician, that the WCJ’s reliance on Dubon was misplaced, and that UR is not “presumed correct on the issue of the extent and scope of medical treatment.” However, Commissioner Sweeney dissented and would affirm the WCJ’s order allowing viscosupplementation injections on the basis that the defendant’s UR was defective on its face because the UR physician was unaware of the applicant’s second knee surgery when she performed the UR, and because the requested treatment had sufficient evidentiary support such that the treatment should be provided.

Read the Garcia-Picen noteworthy panel decision.

Commentary by Robert G. Rassp, Esq., Editor-in-Chief, Rassp & Herlick, California Workers' Compensation Law:

Even though this case arose out of a request for authorization prior to July 1, 2013 and was not technically subject to IMR, the WCJ and WCAB panel treated it as if the request for the viscosupplementation was made after July 1, 2013. Remember, disputes over medical necessity prior to July 1, 2013 where the date of injury is prior to 1/1/13 were still subject to resolution through the AME/PQME process of Labor Code Section 4062 and were not subject to IMR.

Being as it is, the WCAB panel seems to have two alternative courses of action to take when there is a material flaw in the utilization review process — such as in this case where the UR physician is not provided the fact of a second knee surgery that gave rise to the request for the viscosupplementation. For the record, viscosupplementation is used in knee joints when there is significant osteoarthritis and the patient is too young for a total knee joint replacement (TKR) surgery. The viscosupplementation is indicated and supported in the ODG Guidelines for patients who have osteoarthritis in the knee joint and who may become a candidate for TKR surgery in the near future. It provides a resemblance to the natural lubricating oil that the body produces in a healthy knee joint.

The WCAB commissioners seem to be debating whether a flawed utilization review such as this one should be remanded for another utilization review with all medical evidence being ordered by a WCJ to be provided to the reviewer, including both knee operative reports in this case, versus ordering the treatment if the Applicant meets his or her burden of proving medical necessity under the MTUS or as in this case, from the ODG Guidelines.

It appears that some commissioners may be leaning towards allowing the utilization review process to repeat and then if a denial again occurs then the matter goes forward to IMR at the Applicant's request and the WCAB panel does not allow the WCJ to order the treatment and circumvent the IMR process.

Could this case be a hint of where the WCAB is going in its re-review of Dubon? It is probable that the WCAB will give trial judges discretion in deciding true Dubon disputes — to either remand the matter back to utilization review and ultimately to IMR if necessary, or to order the treatment if the Applicant meets the burden of proving medical necessity if the UR process was materially flawed.

My vote is the latter since there are statutory deadlines for the utilization review process to occur in the first place. If the claims administrator blows the UR process in the first place by omitting a material medical fact (such as a second knee surgery), why should the claims administrator get a second shot at UR? What happened to the 5 days to say "yes" or "we need more information" and the 14 day drop dead date? There is nothing in Labor Code Section 4610 or in the regulations that allow a second chance at UR outside the 14 calendar days from the date of receipt of an RFA.

I agree with the dissent in this case — that the WCJ was right in ordering the viscosupplementation and not allowing a second chance at UR or IMR.

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