Rethinking Dubon—There’s Another Option

MARK WEBB, ESQ.

Thousand Oaks, California

The workers’ compensation payor community is in extremis over the recent decision from the Workers’ Compensation Appeals Board (WCAB) in Jose Dubon v. World Restoration, Inc. (State Compensation Insurance Fund) (2014) 79 Cal.Comp.Cases 313. Briefly, this case stands for the proposition that a utilization review (UR) decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision. If a defendant’s UR is found invalid, the issue of medical necessity is not subject to independent medical review (IMR) but is to be determined by the WCAB based on substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.

This decision is fundamentally contrary to changes made to resolve disputes regarding medical treatment in Senate Bill 863 (De León), which at their core can be summed up by the following statement of legislative intent: