Crocodile Wrestling

Monday, October 20, 2014 | 1

At a recent workers’ comp conference in Southern California, Workers' Compensation Appeals Board Commissioner Kathy Zalewski noted that the WCAB commissioners had been doing a bit of “crocodile wrestling” over Dubon.

I’ve seen crocodile wrestling in Thailand, and it often features a trainer with a stick, prodding a crocodile that looks either well-fed or drugged into docile status.

The mental image of crocodile wrestling most of us have is quite vivid, however. Gnashing of big teeth and claws. Vicious tail whipping. Brutal body slamming.

Oh to have been a fly on the wall during the recent WCAB deliberations over Dubon!

Those discussions led to the recently released en banc decision known as Dubon I.

New Commissioner Kathy Zalewski managed to flip three WCAB commissioners who had previously joined in Dubon I.

How vicious was the “crocodile wrestling” at the WCAB? We may never know.

The legal arguments advanced by the parties and stakeholders had not changed after Dubon I. The facts had not changed after Dubon I. Dubon III discusses the same statutes as Dubon I but simply gives different weight to those statutes.

Zalewski appears to have brought along three commissioners to her viewpoint that after the SB 863 reforms the WCAB retains authority only to deal with issues re the timeliness of utilization review determinations.

I’m having trouble clearing my mind of the image of the poor Thai crocodile just wanting to get the stupid Bangkok show over as the trainer berated the croc and teased it with a stick.

Commissioners and judges are allowed to change their minds, and it must be acknowledged that significant legal arguments were brought to bear in urging that Dubon I be overturned.

Still, it raises the eyebrows of many legal observers to see the WCAB do such an abrupt about-face. This type of about-face happened in 2007 in the Pendergrass and Baglione cases.

Repeated about-face changes in course do little for the prestige and legacy of the WCAB.

It is hard to read Dubon III without thinking that the commissioners who changed their minds were concerned about political heat generated by their prior decision. If that’s not the case then it should be noted that they did a poor job of explaining the evolution of their views sufficient to do a total 180. Dubon III is written as if the reasoning of Dubon I had never been adopted.

If for no other reason than that, the issue needs to be resolved at a Court of Appeals.

But whether Dubon will be that case is not clear. Commissioner Lowe did suggest that the issue may be moot. But to its credit the WCAB majority noted that the issue is of wide significance and should not be punted on a theory that it is moot.

Filing a strong dissent was Commissioner Margurite Sweeney.

So we don’t know much about the “crocodile wrestling.”

But what we do know was that Commissioners Ronnie Caplane, Frank Brass and Deidra Lowe totally reversed course, joining Zalewski. This new majority jettisoned the central holding of Dubon I, i.e., that by virtue of Labor Code 4610 and the Sandhagen case the WCAB had authority over material procedural defects in utilization review.

In Dubon v. World Restoration, a February 2014 WCAB en banc decision now commonly referenced as Dubon I, the board held as follows:

”IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.“

”A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision. Minor technical or immaterial defects are insufficient to invalidate a defendant’s UR determination.”

“If a defendant’s UR is found invalid, the issue of medical necessity is not subject to 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.”

Under Dubon III, UR appeals on procedural grounds can not be heard by the WCAB unless the issue is the timeliness of the WCAB.

Sweeney’s dissent points out the practical effect of this:

“Consequently, under the majority decision, a treatment determination that is based on an evaluation by a nurse or other medical professional other than a licensed physician is still treated as a 'utilization review decision' even though it does not meet the definition in section 4610.5(c)(3). In fact, even a treatment determination that is based on the medical records of the wrong employee, the wrong body part or no medical records at all, and even one that does not comply with section 4610 in any way except by being timely, is still treated as a 'utilization review decision' by the majority. In short, the majority allows any treatment determination to proceed to the second step of the process so long as it is not untimely, which effectively makes the Section 4610 utilization review process optional.”

Julius Young is an applicants' attorney for Boxer & Gerson in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.