Former WCJ Questions Exact Parameters of Weilmann Decision By Sherri Okamoto

Published 04/28/2016 by WorkCompCentral

A former workers' compensation judge is cautioning that she thinks a California Workers' Compensation Appeals Board decision from earlier this month on what should happen when a doctor fails to sign a utilization review decision doesn't mean that the decision is necessarily invalid. 

Pamela Faust, now with the Zenith Insurance Co.'s legal team, advises that the WCAB decision in Weilmann v. United Temporary Service "doesn't exactly say that the failure of a utilization review doctor to sign a report is a material defect that invalidates the UR decision."

The board "just worded the opinion very cleverly to make people think that's what they said," according to Faust.  

At the beginning of its opinion in Weilmann, the WCAB panel says the workers' compensation judge found the UR denials invalid because the physicians who issued the denials failed to sign their reports. Faust concedes that this is true, because the WCJ did make such a finding in her opinion on the decision. 

However, Faust points out that the WCAB panel's decision was to adopt the WCJ's report and recommendations, not the WCJ's opinion, and the report and reasoning phrased the WCJ's conclusions differently. 

What she said in her recon report was that a "UR determination which is not signed by the reviewer is not inadmissible ... but will be considered in weighing the evidence." Since none of the UR reports in the Weilmann case were signed, and the absence of signatures was not a minor defect in the WCJ's opinion, the WCJ said she decided to give "little weight" to the UR reports. 

So it's not that the reports were invalid, Faust says, they just weren't assigned much persuasive weight. 

In the Weilmann case, it wound up being "no harm, no foul" that the UR decisions were unsigned because the decisions were invalid pursuant to the WCAB's en banc decision last month in Dubon v. World Restoration, Faust says.

The WCAB ruled in Dubon that it has the authority to determine the validity of a UR decision and that it can overturn decisions that are untimely or suffer from material procedural defects that undermine the integrity of the decision. 

In Dubon, the WCAB found that the failure of the UR doctors to consider all of the relevant medical records related to the applicant's condition rendered the UR decision invalid. In Weilmann, the WCAB panel similarly found that the UR doctor's failure to consider the report from the agreed medical evaluator fatally undermined the integrity of the UR doctor's opinion.

Faust posits that in a case where the only alleged defect is the lack of a signature, a finding that this is a material defect would confer jurisdiction on the WCAB. But under the WCJ's analysis – with the reports being admissible but not assigned any weight – the UR would be subject to the independent medical review process, so the difference matters, Faust says. 

Weilmann's attorneys – Alan Gurvey and Michael Win of Rowen, Gurvey & Win – say they disagree with Faust's analysis.

Even though the WCAB said it was adopting the WCJ's reasoning, and the WCJ stated her reasoning as being that an unsigned UR deserves little probative weight, Win emphasizes that the WCAB plainly said "the failure of all of the reviewing physicians to sign their reports ... undermines the integrity of the UR decisions and renders them invalid."  

Gurvey says he thinks Faust's reasoning still gets her to the point of saying the unsigned UR is "of no probative value."

So "if you want to say that it is a valid UR denial that is useless, fine," he says, but the fact remains, it's still "useless."