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Delineating Dubon: Strategic Considerations and a Winning Game Plan

(May 15, 2014)

by Patrick C. Gorman – 

I recently had the opportunity to review the Dubon ruling at length and wanted to outline some key points to consider when dealing with a challenge to a UR determination on the grounds the determination contains material procedural defects.

The Dubon case has resulted to dramatic changes in the litigation strategy of applicant attorney’s (an applicant’s attorney referred to Dubon as a “game changer”). Dubon states that IMR solely resolves disputes over the “medical necessity” of treatment requests while the WCAB retains jurisdiction to determine whether or not the utilization review decision suffers from material procedural defects.

Judicial scrutiny of the procedural validity of a UR decision was opined to be a matter of pervasive and particular importance since SB 863 amended the Labor Code to bar an injured worker from renewing a treatment request for 12 months absent a documented material change in circumstances. (Lab. Code, § 4610(g)(6)) (Dubon at page 9).

If the Utilization Review is materially defective (a minor technical or immaterial defect is not sufficient to invalidate a defendant’s utilization review determination: see Dubon at page 2), the issue of medical necessity is to be determined by the WCAB.

There are two material procedural defects addressed in Dubon. First, an untimely UR contains a material procedural defect and the WCAB has jurisdiction over the question of medical necessity. Second, the UR Determination must be competent.

With regards to competency, the reviewer must be competent in specialty and practice; and the reviewer’s determination must be based on competent medical evidence. There are competency arguments left unanswered by Dubon. Whether or not the reviewer’s opinion is competent with regards to application of the ACOEM or CA MTUS has not been litigated yet. This is arguably an issue for IMR to decide if the UR determination is otherwise not materially defective.

Key fact spotting:

  • Is the UR timely (prospective, concurrent, or retrospective review) and communicated in a timely manner faxed to PTP and served on parties- communicated in manner prescribed by law)?  Look to LC § 4610(g)(1) – 4610 (g)(5).
    • Look for fax transmission time stamps (see 8 CCR 9792.9.1(a)(1))
    • The report date is not necessarily the date of the request.
    • Look into the PTP report and any bills from the PTP to ensure the treatment requested in the RFA was not already provided (retrospective review (8 CCR 9792.6 (p)) has a 30 day time period and less stringent communication of determination requirements).
  • Is the reviewing physician competent to make a medical determination regarding the requested treatment?
    • Confirm the reviewer specializes in the appropriate specialty to evaluate the specific clinical issues involved in the medical treatment requested.
    • Ensure the reviewer provides the services requested as a matter of their practice of medicine (LC §4610 (e)).
    • Look the reviewer up on the California Board of Medicine website to verify their license, specialties, and practice.
  • Is the review based on review of all information that is reasonably necessary to make a determination with regard to the medical treatment requested? (LC §4610(g))
    • The AME, PQME, or other comprehensive medical legal report should have been reviewed (this was the linchpin of Dubon and your case will be problematic if medical legal reports were not reviewed).
    • MRI reports reviewed if the medical treatment involves surgery, injections, etc. should have been reviewed.
    • Adequate treatment reports reviewed must have been reviewed (at least the most recent reports spanning several months).
    • This is the area receiving the most attention, and likely where the WCJ will hang their determination of a materially defective UR.
  • Issues not yet addressed by the WCAB:
    • Is the determination a competent application of ACOEM and CA MTUS Guidelines (LC §5307.27)?
    • Were adequate attempts made by the reviewer to communicate with the PTP? (see LC §4610(f))
    • If your reviewer is not in CA, ensure they have phone availability hours until 5:00 PT.

Remember, Dubon requires a finding of material procedural defect. A minor technical or immaterial defect is not sufficient to invalidate a defendant’s utilization review determination. A material defect is one that undermines the utilization review process. (CAAA will likely argue this statement is just dicta). Dubon has only found that an untimely utilization review determination and/or a determination that was not based on all relevant medical evidence (an AME report) contained material procedural defects. The key factor is that the defect must be material and of a procedural nature. Absent those two elements combined, Dubon does not provide justification for the exercise of jurisdiction by the WCAB.

I have created my own checklist as follows:

    1. pon receipt of DOR, look for grounds to object (vagueness of issues?). Your objection will likely not result in an OTOC, but will provide notice to the WCAB of your procedural arguments in opposition to the WCAB considering issues not raised by the DOR (procedural posturing should you need to file a petition for reconsideration or removal).
    2. Obtain and review all documents necessary to prove the UR does not contain a material defect of procedure on a rush basis. Remember that UR determinations are valid for 12 months, so the financial benefit of a successful defense is the value of the treatment over 12 months. If you have a solid set of facts, determine if that value justifies further litigation if your defense is unsuccessful (petition for removal or reconsideration if the WCJ exercised jurisdiction).
    3. If you determine you want to fight for a 12 month application of the UR determination, file an objection to the DOR (if you have not already done so) and serve all relevant documents on opposing counsel (this will prevent AA obtaining a continuance and a subsequent appearance). Serve relevant documents under a cover letter stating that the WCAB does not have jurisdiction because the Utilization Review Determination does not contain (or rise to the level of) a materially defect of a procedural nature. Reserve your rights to sanctions and attorney’s fees in the letter.
    4. Prepare a trial brief and exhibits. Insist on submitting the matter at the expedited trial and object, in writing (on the minutes of hearing), to any further hearings. Ensure you reserve your rights to petition for sanctions and attorney’s fees in your trial brief. If your Utilization Review does not contain a material defect of a procedural nature; the matter should proceed, the WCJ should issue an OTOC, or AA should withdraw their DOR. The goal is to prevail at the MSC or preserve your right to petition for removal of the WCJ if that strategically makes sense.

The common theme at the WCAB has been for opposing counsel to propose settlement of the issue for a dollar value of the services or to request a continuance of the expedited so they can build their case. No matter how smart or seasoned an opponent may be, the facts are the facts. If your UR is timely and competent there should be no issue. If the UR is problematic, settlement is likely the preferable option. If you determine settlement is the preferable option, ensure opposing counsel waives or releases their right to LC §5814 and LC §5814.5 claims.

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