A medical services utilization review decision is invalid only if it's untimely, and all other disputes regarding utilization review decisions should be resolved by California's independent medical review process, the California Workers' Compensation Appeals Board said in an en banc ruling.

Jose Dubon sustained injuries to his spine and other body parts in November 2003 and May 2004 while working for Orange, California-based World Restoration Inc., and since then has had continuing problems with back pain, bilateral lower extremity pain, numbness and tingling and limited range of motion, court records show.

Mr. Dubon's physicians have considered spinal surgery as an option for more than three years, as more conservative treatments — including taking opioid medications, having lumbar epidural steroid injections, utilizing a lumbar back brace and a cane for support, participating in physical therapy, following a home exercise program, engaging in activity modification, and using an ice machine at home — haven't worked for him, according to records.

Based on Mr. Dubon's April 2013 lumbar discogram, his orthopedic surgeon requested authorization to perform an anterior and posterior fusion, as well as various post-surgical services, records show.

According to California workers comp law, treatment decisions must not be made more than “five working days from the receipt of information reasonably necessary to make the determination, and in no event more than 14 days from the date of the request for treatment,” the record states.

The orthopedic surgeon's report was dated July 1, 2013, records show. He signed it on July 8, 2013, and it was received by World Restoration on July 11, 2013.

On July 19, 2013, the utilization review provider for State Compensation Insurance Fund, which is World Restoration's workers compensation insurance provider, denied authorization for the requested surgery and post-surgical services, records show. The provider, Bunch CareSolutions, said it was not “medically necessary,” according to records.

The report provided by the utilization review orthopedic surgeon found “there was no documented imaging of nerve root compression or of moderate or greater stenosis at each of the requested levels, there was no evidence that conservative treatment had failed, and there was no documentation of a condition/diagnosis for which spinal fusion was indicated,” records show.

Mr. Dubon's orthopedic surgeon appealed, and a second denial was issued on Aug. 2, 2013. Later that month, Mr. Dubon signed an independent medical review application and filed a declaration of readiness for an expedited hearing, according to records.

On Sept. 23, 2013, a workers comp judge decided that disputes over claimed procedural defects in World Restoration's utilization review denial must be resolved through an independent medical review, records show. Mr. Dubon filed a petition for reconsideration in October 2013, which was granted in December 2013.

The California Workers’ Compensation Appeals Board decided en banc on Feb. 27 that “a (utilization review) decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the (utilization review) decision” and that “minor technical or immaterial defects are insufficient to invalidate a defendant’s (utilization review) determination.”

The decision led the State Compensation Insurance Fund to file a petition for reconsideration on March 24.

The WCAB modified its original en banc decision on Monday, denying Mr. Dubon’s October 2013 petition for reconsideration and ruling that a utilization review decision is invalid only if it’s untimely.

“With the exception of timeliness, all other requirements go to the validity of the medical decision or decision-making process,” the ruling states. “The sufficiency of the medical records provided, expertise of the reviewing physician and compliance with the (medical treatment utilization schedule) are all questions for the medical professional.”

The ruling goes on to say that, “where a (utilization review) decision is not timely rendered ‘in compliance’ with these mandatory deadlines, there is no ‘dispute’ for (independent medical review) to ‘resolve.’”

Medical decisions should be made by medical professionals, according to the ruling. To allow a workers comp judge to “invalidate a (utilization review) decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of (Senate Bill) 863.”