California workers’ Compensation update: How does the En Banc decision of Jose Dubon vs World Restoration effect your workers compensation case.

CALIFORNIA WORKERS’ COMPENSATION UPDATE – LEGISLATIVE CHANGES

Dear Client:

            There have been substantial changes in California workers’ compensation in the past few years and I take this opportunity to provide a brief explanation so that you have a better understanding of what is taking place in your case.

            In April 2004 under Governor Schwarzenegger Senate Bill 899 was passed creating Multiple Physician Networks (MPN) and instituting Utilization Review over treatment. While injured workers were allowed to “pre-designate” a treating physician, absent such a designation an injured worker had to seek treatment in a valid Multiple Physician Network within a specific time.

            MPN statutes dictated that an injured worker select a physician in the MPN as the Primary Treating Physician (PTP) and the treating physician would then send treatment requests to Utilization Review (UR).  If UR modified or denied the treatment request, (almost always with carrier supported UR companies because they use a literal interpretation of the MTUS or Medical Treatment Utilization Schedules outlining treatment) the injured worked could appeal the UR Denial and request that a Panel Qualified Medical Examiner (PQME) make a final decision on the treatment request.  If the PQME overturned a UR Denial, the carrier was required to provide treatment.

            In 2012 under Governor Brown Senate Bill 863 was passed creating Independent Medical Review (IMR) for all dates of injury. As of 1/1/2013 if an injured worker disputes a UR modification or Denial of treatment, the worker must request IMR from MAXIMUS, a private company, by signing and submitting a request form within twenty days of the UR Denial or Modification.  After all  discovery is sent to IMR, a “Final Determination Letter” issues either upholding the UR decision, or not. If a UR modification or Denial is overturned by IMR the original PTP treatment request must be authorized by the carrier.  If an Injured work disputes an IMR Final Determination upholding a UR modification or Denial, then the worker can appeal to the WCAB.  (Currently IMR is upholding approximately 95% of all UR modifications or Denials).

            The MPN-PTP/UR/IMR process is now in place with respect to all medical treatment in California workers’ compensation claims. What is significant under Senate Bill 863 is the WCAB courts no longer have jurisdiction to adjudicate PTP treatment requests. Such is done only through UR and IMR.  Even more significant is a UR modification or Denial is effective for twelve (12) months. Thus if medication is modified or Denied by UR and IMR does not overturn the UR decision, the modification or Denial decision is binding for a year.

            A great deal of litigation has focused upon what constitutes a valid UR Denial.  When the Jose Dubon vs World Restoration case issued early this year (2014), the WCAB decided that an “invalid” UR meant that the treatment had to be provided by the carrier and IMR was unnecessary based upon the faulty UR. Thus we applicant attorneys looked at every case to ascertain if there were procedural problems with UR, for example failure to serve all the documents, etc, and we filed appeals with the WCAB in those cases. However, late this year the WCAB, on its own motion, reviewed its decision in Dubon and updated the decision to say that UR could only be found defective if it was untimely (Dubon III). In other words, if there was an untimely UR then IMR would not apply and the carrier must provide treatment. In all other cases, absent fraud, there is no appeal of IMR (even in cases where the carrier sent the wrong medical records or did not send any at all to IMR or the UR physician made a mistake!)

            Obviously, the Dubon III “revision” is going to be appealed in  State Appellate court, but until there is a decision overturning Dubon III a Final Determination Letter upholding a UR modification or Denial of treatment (most often medication) cannot be challenged.

            So if your medication or an injection etc. has been denied or modified by UR and that decision is upheld by IMR, there is no remedy within the workers compensation system at present.

            I wish I had better news.  I am attending a conference in December and will discuss options with fellow attorneys.

            Thank you for your patience. I hope you have a Happy Holiday Season.

Sincerely,

Ron Mahurin