California: A Post-Mortem on Dubon

By Rob McCarthy

Maurice Abarr wants to set the record straight about what happened leading up to the Dubon II en banc decision earlier this month. He got the chance Saturday at a Van Nuys panel discussion, hosted by Lawworm.com Inc. 

Maurice is the counsel of record for Jose Dubon, whose back-surgery case produced two WCAB en banc decisions in 2014. One WCAB commissioner, who at his request shall go unnamed, believes Dubon I and II were moot, and faults the attorneys in the case because commissioners were unaware that Mr. Dubon's back surgery was approved. Meanwhile, the WCAB continued working on Dubon I and II.

In an email to me last week, the Santa Ana applicants' attorney showed a timeline for Jose Dubon's case that blunts some of the criticism leveled at him.

"The Dubon II opinion may confuse some as to the 'mootness' issue raised by one of the Commissioners in her concurring opinion," he wrote. The chronology of the case, and the collateral events pertaining to the case, are:

> September 20, 2013 -- Finding and Order – WCJ: No jurisdiction to hear issue of medical necessity even though UR was flawed

> October 15, 2013 – Applicant files Petition for Reconsideration

> November 26, 2013 – Defendant’s UR authorizes back surgery after repeat RFAs in October and November 2013

> December 16, 2013 – WCAB Grants Petition for Reconsideration for Study

> February 27, 2014 – Dubon I

> March 24, 2014 – Defendant’s Petition for Reconsideration – first aggrieved

> May 15, 2014 – Jose Dubon undergoes back surgery

> October 6, 2014 – Dubon II

"It is also noteworthy that both the Defendant and I had individually written letters to IMR / Maximus, in December 2013 and January 2014 respectively, withdrawing the issue of back surgery from their scope of review – but leaving other issues ancillary to post-surgical treatment for IMR determination," Maurice added.

"In April, after Dubon I but before Dubon II, IMR issued its determination denying the back surgery as well as all other ancillary services requested. This even though the parties had specifically withdrawn surgery from their review."

He tried to reach a "work-around agreement" with State Fund to avoid more litigation, but could not make direct contact with their attorney, according to his email. 

"With time running out for me to do an appeal, I prepared and filed an IMR appeal, setting forth much of the above chronology and facts … just in case. One of the Commissioners seemingly took exception to these facts and questions whether all of the Dubon decisions should not have been rendered moot by reason of the November 2013 UR approval of the back surgery," Abarr said.

The commissioner who shall go unnamed wrote in a footnote on page 22 in Dubon II, "I agree with the majority, however, that the various failures of applicant’s and defendant’s respective counsel to notify the Appeals Board of the changed circumstances may warrant the imposition of sanctions."

The majority opinion in Dubon II addressed the mootness issue without being distracted by it. Case information in the Electronic Adjudication Management System "is not part of the record before us, nor are the issues raised in applicant’s IMR appeal currently pending before us," the majority wrote.

If the parties neglected to inform the WCAB of a material change of facts, then the Appeals Board may consider imposing sanctions, according to the opinion.

Dubon I was a victory for Abarr and his client. Dubon II was anything but. The commissioners upheld the trial judge's interpretation of LCs 4610 and 4610.5 with one exception: a judge may hear a UR dispute about the report's timeliness only.

That's a far cry from Dubon I, which let judges hear arguments about alleged material defects in the reviewer's report. Dubon II said: let IMR handle any defects.

Abarr vows to fight on, and is preparing an appeal to the District Court of Appeals. The title of his talk on Saturday at the Airtel Plaza Hotel at Van Nuys Airport was "The Rise and Fall of Dubon or We've Only Just Begun."

"While Mr. Dubon has had his back surgery, not all of the services requested were authorized by the defendant and all were denied by IMR," he said. "Further, and more importantly, this is an important issue with Constitutional dimensions."

A soup-to-nuts instruction about LC Sections 4610 and 4610.5 and Dubon I and II dominated the conversation.  Judges Sharon Velzy of Van Nuys, Judge Craig Glass of Oxnard, and attorneys Corey Ingber and Dennis Thomas rounded out the panel. In addition to explaining his case, Maurice Abarr outlined steps for applicants and their doctors when utilization review denies, delays or modifies a request for authorization from a doctor. 

One suggestion was to create a "chain-of-evidence" procedure for documenting each UR denial, and comparing the date on the denial against the postmark on the mailing envelope. 

"Frequently, my staff finds that UR denials are dated one date, but the postmark is several days later," he said.

The key to getting treatment authorized continues to rest with the physician, specifically the amount of effort the treater will devote to getting his RFA authorized, according to Maurice.

"Work with your doctors' office staff as much as they will permit," he added, "to get copies of the RFAs the doctor sends plus any supporting documents submitted to bolster the RFA & Proof of Service/transmittal form confirming date RFA (was) electronically sent to Claims/UR."