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When the second Dubon ruling, now referred to as Dubon II, was made just last Monday, October 6th 2014, by the commissioners of the California Workers’ Compensation Appeals Board En Banc, a natural question one could have asked was, why? Why would the Board change its mind in just a little over seven months? Why do a virtual about-face on the question of material defectiveness in Utilization Review and reverse with a ruling that no matter how good or bad the substantiveness of any UR process, it has to proceed to Independent Medical Review as its sole remedy for appeal? The only exception now is when a UR decision is untimely. With Dubon II, only an untimely UR decision can be decided by a Workers’ Compensation Judge.

The commissioners first made a ruling on February 27th 2014 in Jose Dubon vs. World Restoration, Inc., with the insurer as State Compensation Insurance Fund, stating that there were two ways a Utilization Review could be deemed invalid. The first way was if it was untimely. The second way was if it was procedurally and materially defective to the point that it undermined the integrity of the UR.

This apparently opened up a can of worms. The intent of SB 863, which was passed in September of 2012, was to increase benefits for injured workers while decreasing the cost for employers, which included the system friction costs along with the ravaging costs of litigation. It was a compromise, an impressive and rare deal cut between labor and employers. It increased Permanent Disability rates.

So, according to defense attorney Michael Sullivan, when the first Dubon ruling came out in February 2014, there was suddenly an increase in litigation. “Applicants attorneys were trying to get every case back to the board where there was a denial by UR. Because they wanted to bring it in front of the Board. So, a ton of litigation and judges deciding things is what the defense saw and we hated.”

One of the strong ideas behind SB 863 was that medical doctors should make decisions about what medical care is appropriate and what is not. This created Independent Medical Review (IMR) as the appeal process for treatments denied by Utilization Review. And the idea was to keep this aspect of workers’ compensation cases out of the WCAB in order to cut down on litigation and its harrowing costs and free up the Board to decide legal matters.

This photojournalist took this picture of Stacey Tokunaga on February 22nd 2011 at Splashes Restaurant in the Surf and Sand Hotel in Laguna Beach, California. This place is one of the most idyllic settings in all of Orange County. Photo copyright Lonce LaMon; all rights reserved.

Defense attorney Stacey Tokunaga wrote to adjustercom, “Clearly, the recent En Banc decision from the WCAB on Dubon vs. World Restoration, Inc. is a solid decision and one welcomed by the defense industry. We have been troubled with too much litigation over issues pertaining to what constitutes a ‘material defect’. It is clear that SB 863 intended for medical decisions to be rendered by appropriate medical professionals. This decision makes it clear that only an untimely UR denial is the exception to the IMR process. The WCJ can render a decision on a treatment issue only in those instances where the defendants are untimely, but the WCJ must still follow the MTUS and other treatment guidelines when awarding such treatment.

“That being said, however, as an advocate for defendants, it is my opinion that the DIR should consider implementing a penalty system for untimely UR decisions rather than to invalidate the IMR process. The legislative intent was to remove medical determinations from the litigation process to free up the court’s time for other pressing legal issues.”

But applicants’ attorney, Ron Feenberg of Rose Klein & Marias in downtown Los Angeles, was not thrilled with Dubon II. Ron couldn’t find the October 6th 2014 WCAB Dubon II document when speaking to this writer by phone because, he said, “after feeling some disgust after reading it (twice), I threw it down.”

Commissioner Marguerite Sweeney wrote separately her “Concurring And Dissenting Opinion” which appears at the end of the October 6th 2014 ruling, and it is shown from pages 23 to 31. She wrote, “I concur with the majority that an untimely medical treatment determination is not subject to independent medical review… Otherwise, I respectfully dissent. I would affirm Dubon I.”

Commissioner Sweeney cites case law and emphasizes that Labor Code Section 4610 “imposes procedural and substantive requirements” for Utilization Review. She writes, “It is clear from the language of section 4610 that there are multiple requirements in addition to mandatory timeframes.”

She continues, “In fact, every court that has interpreted section 4610 has described the utilization review process as having multiple requirements, and no court has construed the timeliness requirement to be more important than any other requirement.”

She ends her argument with this sentence, “Treatment determinations that do not comply with section 4610 are not Utilization Review decisions and are not subject to Independent Medical Review. Controversies as to those determinations must be resolved by the WCAB pursuant to section 4604.”

Ron Feenberg, in embracing Commissioner Marguerite Sweeney’s minority opinion, said that he is “very troubled by the majority opinion.” He philosophically disapproves of both utilization review and independent medical review. He said, “Who would entrust their body to a Utilization Review physician?” He cited how these UR physicians have never met, talked to, interviewed, or examined the injured worker and now they have no obligation to review the relevant medical records of the injured worker.

“People outside the workers’ compensation system who could afford to take care of their own bodies would never let a doctor decide the care that body is going to receive under such circumstances.”

Now with Dubon II, Feenberg thinks the system has now been reduced to allegedly providing reasonable and necessary medical care without the relevant medical materials and history to decide.

“In reading the facts of Dubon, that injured worker had an extensive medical history. We now know that. But the tragedy is the Utilization Review doctor didn’t. The Independent Medical Review doctor didn’t. And majority opinion says as long as it’s timely, that’s okay.”

One issue for injured worker Jose Dubon was that many medical reports from both his treating doctor and consulting surgeon were not submitted to and consequently reviewed by the UR doctor. UR then denied his request for back surgery. So, in view of that, Feenberg believes “you don’t have a complete Utilization Review program in place without meeting the other prerequisites, one of which is production of relevant medical records.”

Feenberg went on: "Nobody in their right mind would allow a doctor they don't even know in the UR process let alone a doctor they don't even know in the IMR process to decide what their body does or does not need without a complete picture. And Dubon encourages... (that) the employer has to meet the one pronged issue of timeliness with total disregard for anything else.

“Applicants’ attorneys say ‘Look, this allows UR to just kind of do a sloppy job and just deny stuff without really looking at everything.’ Then it’s in the hands of IMR—that’s their point—and it’s not a terrible point in terms of it may be easier for Utilization Review to be done in a sloppy way and deny what shouldn’t be denied at the front end. But the question is not who has the right value system. It’s a question of what the law says, and that’s what happened in Dubon. So, both sides have legitimate points of view and there’re horrors that both sides claim will occur if it doesn’t go their way. But at the end of the day, it went back our way. This is huge news.”

So, why did it go back “our way” as Sullivan says? This writer thinks it had to do with Kathy Zalewski, the former Department of Industrial Relations Chief Counsel, joining the Board of Commissioners in May 2014 after Commissioner Alfonso Moresi stepped down. Zalewski worked for DIR Director Christine Baker, who was a huge advocate of SB 863. So, it's natural to assume an influence there.

Christine Baker is about to get Mickey Mouse ears placed on her head by Disney workers' compensation manager John Riggs at the film premiere of Decreasing Workers' Comp Costs And Improving Outcomes at Team Disney Auditorium in Anaheim, April 23rd 2012. Photo copyright Lonce LaMon; all rights reserved.

Christine Baker is an insightful, sensitive, and extremely hard-working civil servant. She was the keynote speaker at the film premiere showing of Decreasing Workers’ Comp Costs and Improving Outcomes on April 23rd 2012 at the Team Disney Auditorium at the Disneyland Resort in Anaheim, California. Disney’s workers’ compensation manager, John Riggs, was the host of that event together with Laura Clifford, the Director of the Employers’ Fraud Task Force. The main producer of the film was the Employers’ Fraud Task Force.

Christine spoke of how she went on a “listening tour” in 2011 and 2012 and heard from every type of player in the entire California workers’ compensation system. She clearly saw how the economy had hurt California and how employers were going further broke over workers’ compensation increases. “This is a difficult economy,” she said in that April 23rd 2012 speech. “It’s difficult for the employer. Their ex-mods are going up. Employers have to dismiss workers and one told me that 20 of them came back with workers’ comp claims. That’s a sad story…”

Christine Baker, left, stands next to the podium with John Riggs, right, at the film debut of Decreasing Workers' Comp Costs And Improving Outcomes at Team Disney Auditorium in Anaheim on April 23rd 2012. Photo copyright Lonce LaMon; all rights reserved.

Christine Baker told of how that employer, due to the economy, couldn’t keep the workers. “There are horror stories,” she told the audience. “These are tough economic times. And we’ve got to make sure that the costs stay down. Stay down for the employer.”

Thus, the legislative intent of SB 863 to throw some ice water on litigation seemed to rule this Dubon II decision. As John Riggs said back in 2012, “It’s not so much that there’s so much that’s good about SB 863 from every point of view. Perhaps even the most cynical observer can at least see that there’s so much that’s necessary in SB 863.”

“Dubon (II) is in compliance with the legislative intent that was passed,” said George Woolverton, defense attorney and co-president of the California state-wide Stockwell firm. “It’s a good decision.

“It’s a big deal when it’s En Banc. A panel decision means nothing. All it means is Matthew Bender gets more bucks. Panel decisions are not allowed to be cited. But an En Banc decision is the real deal. It’s a decision made by all the commissioners. That makes it precedent setting. It has a stare decisis effect.”

George Woolverton doesn’t think the appeals court will touch this decision. “Had they let the original Dubon stand, I am sure the court of appeals would have overturned it. But in a much more draconian fashion. So, the appeals board wanted to control their own destiny by entering this decision.”

But, the law firm of Laughlin, Falbo, Levy & Moresi put out a newsletter on October 7th 2014 about this October 6th Dubon II decision and wrote, “Although it is likely this will be appealed, the decision in Dubon II is currently binding.”