In Utilization Review, Timing is Everything


With the enactment of the SB 863 Independent Medical Review (IMR) process, the legislature wanted to have medical determinations made by medical professionals and not workers' compensation judges or the litigation process. The challenge has been to make this paradigm shift smoothly so that injured workers receive quality reasonable and necessary medical care based on the MTUS guidelines.

On October 6, 2014 the WCAB en banc, changed their May, 2014 opinion as to how this process should work and the role of the workers' compensation judges. In Dubon 2, they ruled that workers' compensation judges have no jurisdiction in medical disputes unless there has been no valid utilization review (UR). Validity of a UR decision would be based only upon whether the decision was made in a timely manner. If the UR is untimely, there is no valid UR and the workers' compensation judge can decide if the requested treatment is consistent with MTUS. The burden to prove conformance to MTUS is with the injured worker.

With the enactment of the SB 863 Independent Medical Review (IMR) process, the legislature wanted to have medical determinations made by medical professionals and not workers' compensation judges or the litigation process. The challenge has been to make this paradigm shift smoothly so that injured workers receive quality reasonable and necessary medical care based on the MTUS guidelines.

On October 6, 2014 the WCAB en banc, changed their May, 2014 opinion as to how this process should work and the role of the workers' compensation judges. In Dubon 2, they ruled that workers' compensation judges have no jurisdiction in medical disputes unless there has been no valid utilization review (UR). Validity of a UR decision would be based only upon whether the decision was made in a timely manner. If the UR is untimely, there is no valid UR and the workers' compensation judge can decide if the requested treatment is consistent with MTUS. The burden to prove conformance to MTUS is with the injured worker.

As a side note, there are challenges from both sides on this opinion and we have yet to hear from a Court of Appeal to resolve the dispute. However, until a higher court alters the Dubon 2 ruling, it remains the law for all to follow.

With Dubon 2, the lawyers scrambled to see what makes a UR untimely. Many relied on the myth that a UR is untimely if it is over 5 business days or 14 calendar days. Reading the exact words & the process of 8 CCR §9792.9.1 (e)(3) reveals other timelines rather than the 5/14 bumper strip.

The regulation mandates that the reviewing physician must make his/her decision within the 5 business days or 14 calendar days from the carrier receipt date of the RFA. Once that decision is made, if the decision is to modify, delay, or deny, it must be communicated to the requesting physician within 24 hours of the decision date by telephone, facsimile, or electronic mail.

If the communication is by phone, then a written notice must be sent to the requesting physician, the injured worker, and the injured worker's attorney, if any, within 2 business days for prospective reviews. These rules are slightly different for concurrent or expedited reviews.

The underlying theme is document – document – document.

Bringing reasonable and necessary medical treatment out of the litigation process and into the hands of qualified medical professionals was one of the goals of the SB 863 reforms. The WCAB's opinion in Dubon 2 assists in reaching those objectives.

In the coming months, the constitutional arguments being raised in the First District Court of Appeal will be heard. Regardless of their opinion, there is a very good chance that the issue will be settled within the next few years at the California Supreme Court, for right now, timing is everything for utilization review.