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Workers' Compensation Appeals Board Affirms Worker's Right to Invalidate Flawed Utilization Review Decisions

By Keith Mackenzie, Esq.

In a recent case entitled Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund, the Workers' Compensation Appeals Board issued an en banc decision, affirming an injured worker's right to have a Workers' Compensation Judge invalidate flawed Utilization Review (UR) decisions. By issuing the decision as "en banc," the case and its conclusion are binding on all Workers' Compensation Judges and must be followed. The full opinion is available here.

Flawed utilization review decisions.  Image of a lock representing Jose Dubon v. World Restoration, Inc.


The issue in Dubon was whether or not an injured worker could challenge the validity of a UR denial of medical treatment, and whether a Workers' Compensation Judge could then order an insurance company to authorize the requested medical treatment. Subsequent to January 1, 2013, with the adoption of Senate Bill (SB) 863, a major dispute evolved concerning whether such a legal challenge could be made. The Labor Code was significantly amended by SB 863, stripping Workers' Compensation Judges of their ability to review the denial of many types of medical treatment requests. The new rule generally stipulates that if an insurance company or third-party administrator issues a timely UR denial, the injured worker is limited to an appeal through the Independent Medical Review process. This is a non-judicial process, and many of the kinks are still being worked out. The procedure is laid out in Labor Code Section 4610.5.

In Dubon, however, the Appeals Board confirmed that the insurance companies and third-party administrators still have to play by the rules. According to Dubon, Workers' Compensation Judges still have the ability to determine whether a UR denial of medical treatment is legally valid. If it is not, the Judge can consider the medical treatment request and, if warranted, order the medical treatment be provided. The Appeals Board reaffirmed that the following issues can be considered by a judge in assessing validity, including but not limited to,

  1. whether the UR determination was issued timely;
  2. whether it was issued by a doctor of the correct specialty;
  3. whether the reviewing doctor was sent all information that was reasonably necessary to make a determination, and
  4. whether the denial met a number of other procedural requirements.

This is great news for some injured workers. In advocating for authorization of medical care, we come across arguably invalid UR decisions on a regular basis. The result is often a denial of much needed medical treatment, and can in turn result in a worsening of the worker's injuries. In Dubon, the Appeals Board recognized the important public policy interest in ensuring that injured workers receive the care to which they are entitled in an expeditious manner.

It is not, however, a simple matter of the Judge ordering treatment to be authorized after a Utilization Review denial is determined to be flawed. The worker still has the burden of proving the treatment is reasonably medically necessary. This is usually done by way of medical reports from the worker's treating doctor. In other words, a doctor's job is not done once a Judge has overturned a utilization review denial. The doctor must still generate reporting showing that the request was made timely, and explaining how the treatment is reasonably medically necessary in accordance with the Medical Treatment Utilization Schedule, or the other methods explained in Labor Code Section 5307.27.

The State Compensation Insurance Fund has appealed the Dubon decision, and if they are successful, it could mean that insurance companies could withhold relevant documents from UR physicians to avoid having to authorize care that has been requested by physicians in their own networks. Stay tuned for any updates.

When it comes to Workers' Compensation laws, change is inevitable. Attorneys from Gordon, Edelstein, Krepack, Grant, Felton & Goldstein remain updated on the latest developments, and are constantly working on strategies to help ensure justice for injured workers. If you have questions about your legal options, please click here or call 213-739-7000.



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