Dubon and Adjustment Disorder

The big news out of California this morning is that the Workers' Compensation Appeals Board sitting en banc reversed its earlier ruling in the Dubon vs. World Restoration case.

In its earlier ruling the WCAB was widely criticized by the defense community as destroying the intent of SB 863's independent medical review process by allowing procedural error to trigger ejection from the process, sending the case back into litigious territory.

The new Dubon ruling revises that decision by stating that only if utilization review is untimely is there the option to interfere with the IMR process, allowing a workers' compensation judge to make a determination on medical necessity.

The composition of the Board had changed since the first Dubon ruling with Commissioner Alfonso Moressi retiring, replaced by Commissioner Kathy Zalewski, former Department of Industrial Relations Chief Counsel who was appointed to the WCAB in May.

Commissioner Marguerite Sweeney dissented, arguing that there are substantive requirements for UR decisions, not just timelines for their issuance, and controversies as to whether a UR decision is valid should be resolved by the WCAB.

Commissioner Deidra Lowe argued the matter was moot because Dubon got his surgery.

Applicant attorneys are, understandably, upset because this is a major blow to medical control of a case.

Tina adjusted when she lost her last tooth...

The defense community is ecstatic because they believe the intent of SB 863 is being upheld and that a major case law created loop hole was being closed.

Regardless of any argument in favor of or against the new Dubon ruling, the board's first step in the logic of its opinion can't be refuted: if UR is untimely, then procedurally, as dictated by black letter law, there is nothing for IMR to review, and thus the matter must be decided by the litigation process.

The appealing carrier, State Compensation Insurance Fund, wanted the board to rule that "any dispute" over a UR decision must go to IMR, and that was rejected.

Legal issues are not for IMR, the board states - that process is to determine medical necessity. Timeliness is a legal issue, not a medical issue, so it does not belong in IMR.

The board also ruled that timeliness is basically the only legal issue that could be raised within the statutory scheme of the treatment review process, stating that missing records, expertise of the reviewing physician and compliance with the Medical Treatment Utilization Schedule are medical issues:

"The legislature has made it abundantly clear that medical decisions are to be made by medical
professionals. To allow a WCJ to invalidate a UR decision based on any factor other than timeliness
substitute his or her own decision on a treatment request violates the intent of SB 863."

As Commissioner Sweeney pointed out, those too could potentially involve substantive issues that affect legal rights, but that is not an opinion held by the ruling majority.

So, for the time being at least, medical control over cases that are procedurally efficient (in other words, where timeliness of request or review is not in question) rests with the employer/defense community.

There are going to be individual tragedy cases, and there are going to be cases where treatment isn't medically necessary or supported by the evidence.

But as the California Workers' Compensation Institute had recently pointed out, the bulk of IMR cases involve prescription drugs, and more often than not the prescription of pain killers outside the treatment regimen approved by the Federal Drug Administration.

Prescription drug payments increased 28% from 2011 to 2012 alone, and now account for about $1 out of every $8 spent on medical care, according to CWCI.

CWCI released a paper yesterday arguing that California would benefit enormously from a closed formulary similar to what Texas had put in place, saving hundreds of millions of dollars and perhaps saving many lives from over-prescribed, medically unsubstantiated prescription drugs.

The timing of the release of that report is serendipitous.

What the new Dubon case is really saying is that SB 863 is a game changer, that the rules have changed and that the system is serious about enforcement of those new rules.

The new rules are uncomfortable. They are constrictive and are counter to a hundred years of cultural evolution.

In psychology there is a diagnosis, overused in the psyche-mill hey days of the 1980s, "adjustment disorder." That diagnosis recognized that when change occurs a person's routine is interrupted, which causes some anxiety, but after a time the person adjusts to the new reality and symptoms disappear.

California work comp is going through an adjustment disorder, albeit the period of adjustment is longer than the protocol set forth in the Diagnostic and Statistical Manual IV for psychiatric disorders.

There will continue to be reactionary challenges as the adjustment evolves. Eventually the anxiety will wane, there will be a new level of operational comfort.

The question is whether this new level of operation fulfills the social role for workers' compensation and that is an historical question - i.e. one that can only be answered retrospectively.