With the advent of new case law from the 2nd District Court of Appeal effectively ending the Patterson doctrine, defense attorneys have to question whether the WCAB's en banc decisions in Dubon I and II could eventually be challenged as well.

Donald R. Barthel

The appellate court’s decision in Illinois Midwest Insurance Agency v. WCAB (Rodriguez) could impact important Workers’ Compensation Appeals Board decisions on utilization review and independent medical review.

To be more specific, the pivotal WCAB en banc decisions in Dubon v. World Restoration Inc. and Dubon II could be challenged.

In order to understand these complex topics, let’s first take a step back and review the current UR and IMR process.

Background

The IMR process was created by the 2012 reforms known as Senate Bill 863. IMR was designed to be a quick, efficient and nonjudicial alternative to litigation for medical necessity disputes:

• UR: A physician submits a request for authorization for a specific medical treatment. The adjuster either authorizes the RFA or submits it to a UR physician. If UR denies, modifies or delays the request on the grounds that it is not medically necessary, the injured worker is sent a denial letter. 1
• IMR request: If he or she so desires, the injured worker may apply for IMR within 30 days of the UR denial.
• Independent review: A physician who is independent of the defense, the injured worker and the treating doctor reviews the medical records and UR decision.
• IMR determination: The IMR physician issues a final determination letter, either upholding or overturning the UR denial.

Let’s take a look at how case law has played out on the IMR process.

Dubon

In 2014, the WCAB issued two en banc decisions addressing the IMR process that are known as Dubon I and Dubon II. To the great surprise of much of the workers’ compensation community (and dismay in defense circles), the board ruled that in a certain fact pattern, an injured worker can have a judge rule on medical necessity, thus circumventing the UR/IMR process. The judge would be permitted to be the arbiter of “reasonableness and necessity” only if UR is untimely.

The WCAB reasoned that timeliness is a legal question that trial judges have the expertise to decide and that this required no medical expertise. The board seemed to ignore the fact that once a UR is deemed untimely, the judge would then determine medical necessity, an issue that arguably requires some level of medical expertise.

Patterson

In July 2024, the WCAB took things a step further when it issued a significant panel decision in the case of Patterson v The Oaks Farm. The Patterson case created the Patterson doctrine, which stated that once a defendant authorized the treatment, it could no longer send RFAs for the same care to UR.

Instead, the defendant would have to prove that there was a change in the injured worker’s condition before the defendant could send an RFA to UR. Again, the WCAB added a medical issue (change in medical condition) to be decided by folks without medical degrees.

The foregoing seemed to demonstrate that the WCAB wanted to increase its authority over issues that were originally thought to be the sole responsibility of physicians. Perhaps of even greater concern was that the WCAB’s expansion wrested away even greater medical control from the defense and added evidentiary burdens not applicable to UR/IMR.

Rodriguez

In November 2025, the 2nd DCA issued its decision in Illinois Midwest Insurance Agency v. WCAB (Rodriguez). In that case, the Law Offices of Bradford and Barthel helped persuade the appellate court to begin to limit the WCAB’s jurisdictional power grab.

The Rodriguez case focused on the following question: Does the statutory scheme creating UR/IMR apply to continual, ongoing treatment (like home health care or long-term medication) that has previously been authorized?

The court ruled that there is no exception to the UR/IMR process for ongoing or continual treatment. In short, subsequent RFAs for previously approved long-term care must be submitted to the UR process and, if denied, may be resolved only via the IMR process.

The WCAB does not have an extra-statutory proceeding to approve long-term care simply because the need is constant. This was significant, as it closed the loophole to UR/IMR created by Patterson, underscoring the legislative intent that all disputes over medical necessity, regardless of the treatment type or duration, be subject to UR/IMR.

What does this mean for Dubon I and Dubon II?

Tossing the foregoing into my crystal ball (which, admittedly, has been both foggy and cracked more than once), I query whether the justices in one or more DCA will take aim at the one scenario in which the WCAB continues to believe it retains the power to make medical decisions. In other words, I believe Dubon II is on its last legs.

Why should we dress in black in expectation of Dubon II’s inglorious demise? There are two reasons:

• We should leave medical decisions to doctors, not judges.
• We should speed up the process of determining whether an applicant may receive the treatment proposed by the RFA.

Let’s unpack these two reasons in greater detail.

Doctors, not judges

Years ago, I was speaking on a panel with a presiding judge about Dubon II, and I made an ill-advised reference to “judges playing doctor.” The presiding judge was indignant and stated that their judges do not play doctor.

Although I bit my lip, I thought: What is in a doctor’s job description? An essential role is assessing the need for and extent of treatment. In so doing, doctors often rely on the expertise of technicians, nurses, physicians and others in making these medical decisions.

This is precisely what the WCAB sought to have its judges do in Dubon II: rely on the medical advice of medical professionals and determine which, if any, present sufficient medical evidence that proposed treatment is necessary to cure and relieve work-related medical conditions.

Speed up the process

Speed is an essential component of workers’ compensation in general and medical treatment in particular. The 1st DCA emphasized this point in the 2015 decision of Stevens v WCAB.

In that decision, the appellate court ruled that the IMR process is constitutional in part because it furthers, rather than conflicts with, the constitutional mandate that the system provide “substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.”

The appellate court’s use of the words “expeditiously” and “inexpensively” signaled that it believes the UR/IMR will win the footrace against a judge.

Given that a Dubon II trial has only one issue, it should be expeditiously and inexpensively resolved, right?

Nope. The Dubon II process includes a trial on the issues of timeliness and medical necessity. It can take weeks or months. By contrast, the UR/IMR process, created in part to streamline medical decisions, is usually achieved much more quickly.

The UR decision to approve, modify or deny the requested treatment is to be made within five business days (or, for urgent cases, within 72 hours). IMR decisions can often be resolved within 30 days of receiving the request and all necessary documents.

Conclusion

In short, if courts continue to believe that the workers’ compensation system needs to move expeditiously and inexpensively, and that legislative fixes like the UR/IMR process are aimed at achieving a quick, efficient and nonjudicial alternative to litigation, then one can conclude that Dubon II’s days may be numbered.

Don R. Barthel is a founding partner of Bradford and Barthel and is based in the firm’s Sacramento office. This entry from Bradford & Barthel's blog appears with permission.