Tag Archives: wcj

Sanity Prevails on Award of TTD

The 4th District of the Court of Appeals has reversed a puzzling W.C.A.B. decision that had awarded TTD benefits beyond five years from the date of injury, ignoring the plain language of Labor Code 4656(c)(2). In County of San Diego v W.C.A.B. (Pike),<http://www.courts.ca.gov/opinions/documents/D072648.DOCX> the appellate court had little difficulty in reading the rather straightforward statutory language to firmly reverse the WCJ and W.C.A.B. decisions awarding TTD beyond the five-year jurisdictional limit set by statute.

The applicant, Kyle Pike, sustained injury to his right shoulder in July 2010 while employed as a deputy sheriff for the County of San Diego. He was awarded a 12% PD benefit in May 2011. On May 26, 2015, within the five-year jurisdictional time to reopen his case, he filed a Petition for New and Further Disability seeking TTD and Labor Code 4850 benefits. He received his 4850/TTD benefits through July 31, 2015, at which time benefits were terminated.

At trial, the WCJ awarded benefits on a continuing basis, determining that while Labor Code 4656 was clear regarding benefits payable within the five-year jurisdictional time frame in the statute, it was silent as to what benefits could be provided after five years from the date of injury. On reconsideration, the W.C.A.B., in a split decision, affirmed the WCJ’s award.

The Appellate Court had little difficulty in seeing through the WCJ’s and W.C.A.B.’s construct:

“       This interpretation of section 4656, subdivision (c)(2) is not tenable.  As discussed above, section 4656, subdivision (c)(2) clearly and unambiguously provides that temporary disability benefits “shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.” (§ 4656, subd. (c)(2).) Thus, contrary to the board’s decision, the relevant statutory language does provide that all periods of temporary disability for which payments are made must occur within five years of date of the injury.”

The court also pointed out that if the WCJ/W.C.A.B. analysis was correct, even the 104-week limitation would not exist after the five-year limitation, in effect, eliminating any limitation on TTD beyond five years while providing limitations within five years, hardly a logical result.

“…Such inconsistent reasoning further demonstrates the fallacy of the WCJ’s interpretation.”

See also: Why WC Needs an Outcomes Strategy  

The appellate court also pointed out that all of the authorities cited by the applicant attorney, amicus for applicant and the W.C.A.B. were interpretations of Labor Code 4656 prior to the amendments limiting TTD to the period within five years from the date of injury.  The court further noted that in the one decision it found where similar language was included in the statute, the appellate court had limited the receipt of TTD to within the five-year statutory time frame.

The court reversed the W.C.A.B. decision remanding the case back to the W.C.A.B. to grant the Petition for Reconsideration of the Petitioner, County of San Diego.

Comments and Conclusions:

The W.C.A.B.’s decision in this case is at best puzzling, at worst a flagrant attempt to avoid the legislature’s clear intent. It is difficult to conceive of how this statute could be tortured into an interpretation that allowed TTD to be paid beyond the statutory limitation. The analysis by the WCJ, adopted by the majority of the W.C.A.B., was patently inconsistent and required a tortured reading of the statute to reach the final result.

If the WCJ/W.C.A.B. analysis had been upheld, all an injured worker would have to do to obtain additional TTD is file a petition within five years from the date of injury and then wait till after the five-year date to claim additional TTD. Hardly a result the legislature intended and one that even the W.C.A.B. would have a hard time justifying with a straight face.

A copy of the decision can be found here.

Blockbuster Opinion on Apportionment

The Court of Appeals in the 3rd District has issued a blockbuster opinion on apportionment in City of Jackson v W.C.A.B. (Rice) regarding the requirements for substantial medical evidence in worker’ compensation cases. In reversing the W.C.A.B., the court laid out its analysis of why a QME’s apportionment to genetic factors was well supported and legally sufficient.

The applicant in this case was a 29-year-old, police officer who developed cervical spine pain, resulting in the need for surgery. He was evaluated by QME Sloan Blair MD on multiple occasions. Dr. Blair apportioned applicant’s disability to multiple factors, including 17% each to his employment with the city, to prior employment and to personal activities. The remaining 49% was apportioned to his personal history, including “genetic issues.” In response to a request for supplemental report from the applicant attorney, Dr. Blair further clarified the basis for her opinion:

“…“to a reasonable degree of medical probability that genetics has played a role in Mr. Rice’s injury,” despite the fact that there is no way to test for genetic factors. Citing the referenced medical studies, Dr. Blair stated that one of them said “heritability was . . . 73 percent in the cervical spine. . . . [S]moking, age, and work are only a small percentage of disc disease and most of it is familial.” Another source cited the role of heritability in disc degeneration as 75 percent, and the other stated it was 73 percent. Dr. Blair cited a fourth article that claimed, “ ‘[t]win studies demonstrate that degeneration in adults may be explained up to 75 percent by genes alone.’ ” The same study found environmental factors to contribute little or not at all. Dr. Blair stated that while these studies supported an apportionment of 75 percent to personal history, she decided to err on the side of the patient in case there was some unknown “inherent weakness” in the study, and decided that 49 percent was the “lowest level that could reasonably be stated…”

The WCJ accepted Dr. Blair’s apportionment to genetic factors but rejected the other apportionment awarding PD based on 51% industrial causation. On reconsideration, the W.C.A.B. reversed, asserting Dr. Blair’s apportionment to genetic factors resulted in an allocation of disability to impermissible immutable factors and not to “specific identifiable factors” and was therefore not substantial evidence.

See also: 3rd District Upholds Validity of IMR  

The 3rd District took issue with the W.C.A.B.’s entire analysis of this apportionment issue. Noting the specific intent of SB 899 to allow apportionment to “other factors,” the court went through multiple W.C.A.B. and appellate court decisions on apportionment and could find little to distinguish apportionment on the basis of degenerative joint disease, asymptomatic prior conditions etc. The court specifically rejected the W.C.A.B.’s reference to “impermissible immutable factors,”  commenting as follows:

“…Precluding apportionment based on “impermissible immutable factors” would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition. 

The Court pointed to several instances where medical evidence relied on apportionment to genetic dispositions to develop medical conditions, citing the Kos v W.C.A.B., Escobedo and Acme Steel cases and further noting:

“…We perceive no relevant distinction between allowing apportionment based on a preexisting congenital or pathological condition and allowing apportionment based on a preexisting degenerative condition caused by heredity or genetics.”

The court also rejected the W.C.A.B.’s analysis that Dr. Blair’s reliance on the applicant’s genetic makeup resulted in apportionment to the causation of injury rather than the causation of disability. The court pointed out the cause of the injury was repetitive motion, not genetics. Rather, Dr. Blair commented that the applicant’s disability was caused by a combination of factors, including a significant contribution from his genetic makeup..

The court was also not put off by the QME’s reliance on medical literature to support her conclusion rather than on a specific history from the applicant of his genetic makeup or background. As noted by the court, the doctor’s conclusion was supported by significant, unrebutted medical literature that found degenerative disc disease was influenced significantly by genetic factors and only minimally to environmental factors such as work activity. The court points out that the research relied upon by Dr. Blair supported the conclusion that as much as 75% of all DDD was related to genetics, and the issue was not whether one could prove that the genetic factor existed; the existence of significant DDD established the genetic factor as present.

“Dr. Blair’s reports meet all of the requirements of Escobedo. Dr. Blair expressly stated that confidence in her opinion was predicated on reasonable degree of medical probability. Dr. Blair gave the reasoning behind her opinion–the published medical studies–and even named the studies and the pages relied upon. Her opinion disclosed familiarity with the concept of apportionment. Labor Code section 4663 states that apportionment is based on causation, and that “[a] physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors . . . .”  (Lab. Code, § 4663, subd. (c).)”

The case was remanded to the W.C.A.B. to issue an opinion based upon the QME’s conclusions.

Comments and Conclusions:

Assuming this decision holds up — it is certainly likely to be appealed further — it dramatically reinforces the rules on apportionment to any relevant factors that a physician can identify with reasonable medical probability.

There are some unusual circumstances in this case that may have played a role in the ultimate outcome. First, the applicant was relatively young to have significant DDD, only 29 years old. That fact probably tipped Dr. Blair off that there was something about the condition that could not be attributed to environmental factors, including work. Second, the length of employment as a peace office was not lengthy; the applicant had worked less than five years in a full-time capacity. There had not been a lot of time to attribute causation to work activity.

There is also fairly strong support in the medical literature that DDD is not really activity-related. Other than studies that suggest whole body vibration is a significant factor, there is little to suggest that bending, lifting and stooping, without significant trauma, plays any role in the development of disc disease.

The situation is much like carpal tunnel syndrome, where the medical literature overwhelming fails to demonstrate a relationship between computer usage and the disease process, and yet we still routinely get compensable reports without any real support in the medical literature. Spine pain is constantly related to even relatively benign work activities as a matter of course.

Clearly, defense attorneys need to start appearing at doctor depos armed with the literature cited by Dr. Blair and challenge physicians to provide a basis for their unapportioned or minimally apportionment spine CT claims, especially in younger individuals.

See also: Intelligent WC Medical Management  

This decision may have even broader applications in non-orthopedic cases. We have a wealth of literature about causation of various internal medicine conditions and even psychiatric conditions attributable to genetic, historical and environmental factors that now can more carefully be considered to support apportionment where previously the W.C.A.B. had been rejecting such opinions. The issue of whether there can be apportionment to genetic factors or predispositions would appear to be resolved in the affirmative in this case.

another reversal on 'going and coming'

Another Reversal on ‘Going and Coming’

California’s 2nd District Court of Appeal has reversed a Workers’ Compensation Appeals Board (WCAB) decision, which had in turn reversed a decision by a workers’ compensation judge (WCJ) on a “going and coming rule” case. In Shultz v WCAB (Joint Test Tactics and Training (JT3)), the court ultimately determined that the employee was operating his motor vehicle within the course and scope of employment. So, the going and coming rule, which defines the ordinary commute as not being part of the work day, was inapplicable.

Craig Schulz was a civilian employee working on a secure U.S. Air Force base not open to the public. On the day in question, he drove his personal vehicle to the base and passed through the secure gate using the security pass issued by his employer. Approximately one mile past the gate, he was involved in a motor vehicle accident (MVA) and sustained injuries. He claimed they were in the course and scope of employment. His employer denied the claim, saying he had not yet reached the employer’s premises. The employer also argued that the applicant had sustained injuries because of an idiopathic seizure related to his diabetes, so the injuries did not arise from his employment.

Extensive testimony was taken at trial as to the employee’s duties, his need to travel to various locations on the base during the course of the day and whether his employer expected him to use his personal vehicle. The employee testified that he commonly used his own vehicle to travel from location to location on the base. The employer presented testimony that it provided vehicles for employees to travel around the base and that it did not require the employee to use his own car. Multiple witnesses, however, confirmed that Schulz did, in fact, use is own vehicle on multiple occasions. Schulz provided compelling documentation from his own log (kept for tax purposes) of his vehicle usage. There was also general agreement that, while vehicles were typically available, on occasion they were not. Schulz’s side argued both that he had entered the employer’s “premises” when he went through the secured gate and that his vehicle was used in the course of his employment, based on custom and practice.

The WCJ ruled in Schulz’s favor, relying principally on the use of his personal vehicle on the job site. The judge did not address the premises issue raised by Schultz, nor was there any compelling evidence (at least according to the court) to support the claim of idiopathic causation. On appeal, the WCAB reversed, based on the employer’s evidence of availability of its vehicles and the policy that work could be postponed until a vehicle was available. The WCAB held that the injury was outside the course and scope of employment. The WCAB did not address the applicant’s argument that he was on the employer’s premises at the time of injury.

The appeals court did not focus on either the WCJ’s line of thought nor that of the WCAB but instead focused on the premises argument. The court noted:

“Although Schultz was assigned to a particular building on Edwards, it is undisputed that he and other employees of JT3 performed work at multiple locations at the base at various times. Edwards is a secure location, and JT3 controlled Schultz’s access to the base, which he could only enter with a security pass issued by JT3 and approved by the Air Force. Because JT3 controlled Schultz’s access to Edwards, and Schultz worked throughout the base on assignments, he was on the premises of his employer once Schultz entered Edwards, and his injury therefore occurred during the course of that employment for purposes of the workers’ compensation law. “

The court cited Smith v IAC, a California Supreme Court case, as support for the concept of an understanding of the expanded-workplace concept. The court found that the Schulz case was even “more compelling” than Smith on defining the premises of the employer as beyond the actual buildings where the work was performed. The court found that the discussion as to whether Schultz was required to provide his vehicle was irrelevant once it was determined he was on the premises:

“For purposes of the premises line rule, it does not matter whether Schultz was permitted to use his own car to perform work, as he contended, or if that was not permitted, as maintained by JT3, as the record clearly shows that Schultz was required to work throughout Edwards at times, and his work was not confined merely to Building No. 1440. Schultz was on JT3’s premises for purposes of employment when injured.”

The court summarized as follows:

“We hold that the premises line rule applies to an employee injured in a single-car traffic accident where (1) the employee was a civilian working on a secure U.S. Air Force base not generally open to the public, (2) the employee entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force, (3) the employee had traveled one mile inside the base when the accident occurred and (4) the undisputed evidence established although the employee worked out of a fixed location, the employer had multiple locations on the Air Force base and the employee traveled sometimes in his own vehicle, as needed, throughout the base to perform work assigned by his employer.”

Comments and Conclusions:

If we were ever under the illusion that the “going and coming” rule was an inflexible legal concept, this case should certainly dispel the notion.

It is interesting that neither the WCJ nor the WCAB seemed to focus on the ultimate legal issue relied upon by the appellate court, namely whether the employee had entered the employer’s premises once he had passed through the secured gate. Some understanding as to why that may have occurred can be found in some of the court’s discussion as to whether the applicant had raised this issue in proceedings below the appellate level. One of the arguments raised by the defense included the assertion that the applicant was raising the premises rule for the first time on appeal and therefore had forfeited the right to raise the argument. The appellate court rejected that argument, finding the applicant had included a discussion of the issue in the trial brief, thereby preserving it for consideration on appeal. However, it is certainly possible that, with all the testimony on whether and how often the applicant used his vehicle, the parties may have simply overlooked the premises issue. The court certainly found enough evidence in the testimony to make a finding on the issue, so the factual basis was available for everyone to see.

In the grand scheme of things, this case does not increase exposure very much. The number of cases where an employee enters a third party’s premises that will also be considered the employer’s premises and then continues to drive several miles will likely be very limited. The fact that the court relied upon the secured nature of the location also makes expansion of this concept somewhat questionable.

Court Takes Practical Approach to SB 863

The 4th District Court of Appeal has ruled on the “retroactive” application of the independent bill review (IBR) provisions of California’s SB 863 and whether the legislature intended to remove from the Workers’ Compensation Appeals Board (W.C.A.B.) the jurisdiction to address bill disputes that existed before the law took effect. (Jan. 1, 2013).  In California Insurance Guarantee Association (C.I.G.A.) v W.C.A.B. (Elite Surgical Centers), the court ruled that the legislature did not wrap up pre-existing medical billing disputes into the new IBR process and that the W.C.A.B. continues to have jurisdiction to resolve those disputes. The court also found that the process used by workers’ compensation judges (WCJ) and adopted by the W.C.A.B. to determine the appropriate fee in these disputed cases constituted the necessary substantial evidence.

The issue in the case involved fees for outpatient surgical center fees for more than 300 cases for treatment provided before Jan. 1, 2004. (The cutoff date is significant as ambulatory surgery centers (ASC) became subject to the official medical fee schedule (OFMS) after that date. Before that date, only hospital-based surgery centers were subject to the OFMS.) Evidence was presented that Elite had increased its rates in November 2000. C.I.G.A. (along with seven other defendants) contested the amount billed and paid the undisputed portion of the bill. The remainder was left for resolution at the W.C.A.B.  At the time this matter came to trial, the W.C.A.B. had consolidated 333 liens, involving different procedures, into a single litigated case.

The case was litigated for 17 days. Elite provided its evidence showing the services provided and its customary fees accepted for similar procedures. Defendants presented contrary evidence, to portray the Elite charges as grossly disproportionate to those of other local providers. Defendants also argued that the ASC OFMS that went into effect on Jan. 1, 2004, was the most reasonable and objective method for determining a fee for Elite’s services.

Before a decision was issued, the legislature passed SB 863, which became effective on Jan. 1, 2013. On Feb 1, 2013, the WCJ issued his decision awarding specific amounts for each of the different types of services at issue. The amount awarded was not based strictly on the evidence presented by one side or the other but represented a figure midway between the ASC OFMS that became effective on Jan. 1, 2004, and the OFMS for hospital-based surgery centers that was in effect beforehand. The awarded fees were between 22% and 45% (depending on the procedure) of what Elite had presented as its reasonable charges.

Defendants appealed from the WCJ’s order, arguing that SB 863 removed the W.C.A.B. jurisdiction to resolve billing disputes and instead required the use of the newly enacted IBR process to resolve the disputed bills. Defendants also argued that the WCJ’s decision was not based on substantial evidence. After initially granting reconsideration, the W.C.A.B. affirmed the WCJ’s decision.

Defendants’ petition for writ of review was granted, and the appellate court upheld the W.C.A.B.’s jurisdiction to decide the disputed issues. The court also found that the WCJ’s analysis was based on substantial evidence.

In considering the potential application of IBR to the disputes existing as of the time SB 863 became effective, the court took note of section 84 of the statute, which required: “This act shall apply to all pending matters, regardless of date of injury, unless otherwise specified in this act, but shall not be a basis to rescind, alter, amend or reopen any final award of workers’ compensation benefits.”

Defendants’ argued, unsuccessfully, that because there was not another provision dictating when the IBR provisions were to become effective, the provisions applied to all pending matters. The court agreed that at first blush the section appeared to mandate application of IBR to pending matters. The court, however, did not stop at that analysis, noting that a review of the entire framework of the IBR procedure indicated the matter was more complex. The court pointed out the impracticality of applying the new provisions to existing cases because of how the statutory process was set up:

“After considering SB 863 as a whole, we conclude that this legislation is ambiguous with respect to whether the IBR process was intended to apply to pending billing disputes, or, rather, was intended to apply only prospectively, to new billing disputes that arise with respect to injuries that occur after the effective date of the legislation. Attempting to apply section 84 of SB 863 in this case would leave these parties without a process by which to have their dispute resolved by a third party, since the new IBR process may be utilized only if certain conditions precedent have been met, and the deadlines for meeting those conditions have passed. Leaving these parties without a viable process to decide their dispute cannot be what the legislature intended. We conclude that in creating the IBR process, the legislature intended to establish a new dispute resolution procedure that would apply to disputes arising on or after the effective date of the legislation, and not to disputes like this one that were pending at the time the legislation went into effect….

“Although this provision does not expressly state that the legislature intended that the IBR and IMR processes go into effect only prospectively, it provides an indication that the legislature viewed both the IMR and IBR processes as applying to future employment-related injuries and to future disputes as to medical care and billing for such care.”

Defendants argued that the lack of process for disputes on billing before Jan. 1, 2013, could be addressed by administrative regulation. The court pointed out the administrative director (AD) had already created regulations and that no such process existed. Acknowledging the ambiguity of the statutory language and the practical problems in applying the statutory process where the events precedent to IBR have already passed, the court ruled:

“In the face of such ambiguity, we are led to interpret the statute as operating prospectively.  … [statutes ordinarily are interpreted as operating prospectively in the absence of a clear indication of a contrary legislative intent]; see also Myers v. Philip Morris (2002) 28 Cal.4th 828, 841 [when a statute is ambiguous regarding retroactivity, it is construed to be prospective in application]. In construing statutes, there is a presumption against retroactive application unless the legislature plainly has directed otherwise by means of ” ‘express language of retroactivity or . . . other sources [that] provide a clear and unavoidable implication that the legislature intended retroactive application.’ ” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475 (McClung).) Although, at first blush, SB 863 section 84 might appear to constitute ” ‘express language of retroactivity’ ” …, it specifically allows for other portions of the statute to provide a different rule regarding retroactive/prospective application, and at least one other provision of the statute, Labor Code section 139.5, suggests that the IBR process was intended to apply only to disputes over medical treatment provided for injuries that occur on or after Jan. 1, 2013….

“Considering these obstacles to applying the new billing review process to pending claims, it is clear that the legislature could not have intended to leave parties who had pending billing disputes on the effective date of the new statutory scheme with no meaningful procedure for resolving their disputes. ”

The court also provided an extensive discussion of the WCJ’s analysis in determining the appropriate fee for the services in dispute. The court determined the WCJ properly applied the guidelines required in the Tapia v Skill Master Staffing case including its reliance on Kunz v Patterson Floor Coverings, both W.C.A.B. en banc decisions.

“As the WCJ noted, the formula that he used to calculate the “reasonable” facility fees for the relevant time period for the procedures at issue took into consideration what Medicare allowed, what Elite charged, what Elite accepted as payment, what the OMFS for ASCs as of Jan. 1, 2004 allowed, what the OMFS for hospitals during much of the relevant period allowed and the fees that other ASCs billed and accepted for the same or similar services. The WCJ considered evidence as to all of these factors, and arrived at results that fell somewhere in the middle of all of these figures. These conclusions are supported by the evidence and are clearly permissible.”

Comments and Conclusions:

The court was clearly swayed by the practical issues in attempting to implement the IBR procedure to disputes where the necessary steps to enter the IBR process had long since passed. While defendants and amicus argued the procedural gaps could be addressed by regulation, the court remained unconvinced that the legislature intended the billing dispute process to be restarted and then shoehorned into IBR. While the fact the legislature had defined an implementation timetable for IMR but not IBR may have made it tempting for the court to rule, and defendants to argue, for retroactive application, the practical problems in doing so ultimately carried the day.

The court’s rather lengthy discussion and approval of the WCJ’s analysis of how to resolve the facility fee dispute may have broader import in the long run as it may provide a roadmap for how to address similar disputes in existing cases. While most ASC fees in cases from after Jan. 1, 2004, are fairly easily resolved, cases pending for services before that date still exist. Prior cases such as Kunz and Tapia had provided some guidance, but translating those cases into easily applied formulas still poses problems. The WCJ’s discussion and the issues he considered, as well as the objectively based formula, may serve as guidance in pending cases with similar disputes.

This does not necessarily mean that all such cases should resolve at the same midway point. Among considerations that both the WCJ and appellate court pointed out as significant was the quality of the facility. Elite presented evidence that its facility was state-of-the-art and provided higher-quality medical technology than other local facilities. One witness seemed to suggest the facility was closer to a hospital-based surgery center than most ASCs. One might therefore view the WCJ’s objective standard as the upper end of the scale for ASC facilities. Surgery centers with more mundane credentials might very well have to settle for a value between the 2004 OMFS  and the WCJ’s formula.

WCAB Limits Review of UR Decisions

A divided Workers’ Compensation Appeals Board has issued its long-awaited en banc decision to the defendant’s appeal in Dubon v. World Restoration and substantially modified its prior en banc holding to limit the ability of the WCAB to decide medical issues only in cases where utilization review (UR) is untimely. In doing so, the WCAB completely retracted its prior holding that UR decisions that were “procedurally deficient” were subject to WCAB jurisdiction to address medical issues. In reversing itself, the WCAB effectively disagreed with its own rule ADR 10451.2 to the extent it made such procedural issues the subject of WCAB review.

The new holding of the WCAB, decided on a 4-1 vote, with Commissioner Lowe concurring and dissenting and Commissioner Sweeney dissenting, is set out as follows:

1. A utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.
2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), 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 Labor Code section 4604.5

The decision provides a substantial change from the former broadly worded opinion giving wide discretion to trial judges to find UR defective based on multiple defects beyond timing. Workers’ compensation judges (WCJs) in the interim had a field day finding such perceived “procedural defects” — some of which, based on WCAB panel decisions, appeared to be very minor — a basis to assume jurisdiction over medical care. The WCAB, in removing the ability to review UR-based issues other than untimeliness, emphasized the language in SB 863 that medical issues should be decided in UR and IMR and not by WCJ:

“Commissioner Sweeney suggests that a UR decision that does not comply with the mandatory requirements of section 4610 is not a decision subject to IMR. (See § 4610.5(c)(3).) We disagree. The legislative intent is clear. IMR is the sole mechanism for reviewing a UR physician’s opinion regarding the medical necessity of a proposed treatment. Consistent with this, we hold that where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment, even if the UR process did not fully comply with section 4610’s requirements….With the exception of timeliness, all other requirements go to the validity of the medical decision or decision-making process. The sufficiency of the medical records provided, expertise of the reviewing physician and compliance with the MTUS are all questions for the medical professional….”

The WCAB, however, has also concluded that IMR is limited to resolving medical disputes and is not authorized to address timeliness issues. Only the WCAB can decide if UR is timely in the absence of some statutory authority for IMR to consider the issue. SB 863 did not specifically address this issue; the board’s decision continues to rely on the decision of the California Supreme Court in Sandhagen v. WCAB, which held the WCAB had authority to resolve medical disputes where UR was timely:

“Sections 4610.5 and 4610.6 limit IMR to disputes over ‘medical necessity.’ Legal disputes over UR timeliness must be resolved by the WCAB. (§ 4604 (‘[c]ontroversies between employer and employee arising under this chapter shall be determined by the appeals board, … except as otherwise provided by Section 4610.5’ (italics added)); § 5300 (providing that ‘except as otherwise provided in Division 4,’ the WCAB has exclusive initial jurisdiction over claims ‘for the recovery of compensation, or concerning any right or liability arising out of or incidental thereto’); see also Cal. Code Regs., tit. 8, § 10451.2(c)(1)(C).)”

The WCAB continued to emphasize that, on those occasions when the WCAB determines UR was untimely and therefore subject to decision of the WCAB, the decision is not automatically to award the disputed medical treatment but to require the decision to be based upon substantial medical evidence, with the applicant having the burden of proof.

Dissenting Opinions

There were two additional opinions in this matter. In a concurring and dissenting opinion by Commission Lowe, she agreed with the majority’s analysis and holding in this matter but would have dismissed the entire appeal as moot because the applicant’s surgery has since been authorized based on further review. Commissioner Lowe noted that while she would “unequivocally concur in the majority holdings, I maintain that it was not necessary to reach the merits here.”

Commissioner Sweeney, however, issued a strongly worded dissent indicating she would uphold the initial decision in Dubon I. Making essentially the same arguments that were outlined in the original decision she argues for WCAB jurisdiction to review medical issues on the much broader scale than the majority opinion.

Comments and Discussion

This decision essentially leaves the state of the law much the same as it had been before the first en banc decision in this case. While some defendants would occasionally raise the issue of WCAB jurisdiction to decide medical issues where UR was untimely, the issue did not come up nearly as often as the “procedural defects” the WCAB identified as a basis for the WCAB to decide medical treatment. Issues that had been raised to the WCAB included completeness of the medical record in UR, adequacy of the UR physician’s discussion, UR physician specialty, signature of UR by a physician (as opposed to the actual decision being made by a physician) and delay notices issued by a nurse rather than a physician. Based on the new WCAB decision, all of those issues are the kind that can be addressed in IMR when the full and more complete review of medical necessity is made.

It will be interesting to see if this case is appealed further. Certainly, there is very little reason for the applicant attorney to take this case up as his client has received the requested treatment, and should he do so the argument for mootness of the decision would probably convince an appellate court that this case is no longer ripe for dispute.

For defendant, the decision must be considered a substantial win. The WCAB has significantly pulled back on the very expansive decision of Dubon I, returning the worker’s compensation community to the status quo before Dubon I. It is probably worthwhile for the employer community to attempt to obtain appellate review of the issue of WCAB jurisdiction over untimely reviews, the urgency of that issue is not as great as the potential chaos that Dubon I caused and was continuing to develop. Whether the commissioners were influenced by the flood of hearings challenging UR on every conceivable issue, real or not, is something only the majority knows. Certainly, the potential for reversal at the next level with the very thin justification for the original decision must, and should have, played a role in the reversal.

The new decision of the WCAB is one that is certainly much easier for the WCAB to defend in the event the case goes up. The argument that the WCAB gets to decide timeliness of UR is probably supportable on the basis of the statutory scheme. The question of whether the WCAB’s remedy for such untimeliness, that a WCJ can then decide the issue, is probably still open to question at the next level but is certainly decided at this level for now.

The takeaway from this decision is clear: UR needs to be timely!