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No material mistake of fact exists when IMR reviewer fails to list the actual reports and records reviewed by the IMR physician
In Hacker v. County of San Bernardino-Public Health Department, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, held that the WCJ’s findings that IMR determinations were not “substantial evidence” because they did not specifically identify the date and author of each report reviewed as part of the IMR process did not support an order setting aside the IMR determinations due to “plainly erroneous express or implied finding of fact” as described in Labor Code § 4610.6(h)(5) [LC 4610.6].
(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)
The WCAB majority found that nothing in the IMR statute requires IMR determinations to state the author and specific date of each and every report reviewed. In fact, 8 Cal. Code Reg. § 9792.10.6(d) [R 9792.10.6] provides only that IMR determinations contain a “list of the documents reviewed.”
The WCAB majority found that, here, the IMR determinations sufficiently complied with the rule by listing documents reviewed by the name of the provider and by the range of the provider’s dates of service. Even if the WCAB accepted the WCJ’s view that the IMR determinations should state the specific date of each report reviewed, the WCAB found that Labor Code § 4610.6(h)(5) is not applicable because the failure to state the dates of reports does not involve any findings of fact.
In reversing the WCJ, the WCAB majority concluded that the applicant did not establish grounds for her IMR appeals under Labor Code § 4610.6(h), and that the defendant was not obligated to provide the proposed treatment.
Commissioner Caplane agreed with majority panel that the WCJ’s decision was not properly subject to reconsideration because it was not a final order, but dissented from the majority’s conclusion that there was a basis for ordering removal. Commissioner Caplane reasoned that removal is an extraordinary remedy that is only available if the decision will result in significant prejudice or irreparable harm. However, in this case, the defendant would incur no significant prejudice or irreparable harm if new IMRs are conducted as ordered by the WCJ pursuant to Labor Code § 4610.6(i), even if the IMRs determine that treatment is reasonably required, because the defendant is already obligated to provide medical treatment under Labor Code § 4600 [LC 4600].
We’ve asked Robert G. Rasp, Esq., the Editor-in-Chief of Rassp & Herlick, California Workers’ Compensation Law (LexisNexis), for his reaction to the Hacker noteworthy panel decision. “It is no surprise that the conservative arm of the current WCAB felt that there is no material mistake of fact under Labor Code Section 4610.6(h)(5) when the claims administrator fails to tell an IMR physician what the mechanism of injury was, or if the IMR reviewer fails to list the actual reports and records that were reviewed by the IMR physician,” says Rassp. “This panel is utilizing a literal interpretation of Labor Code Section 4610.6(i) that says ‘in no event shall a WCJ make a determination of medical necessity contrary to the determination of the independent medical review organization.’”
Rassp warns that Hacker “is not a good case for a writ since the defense attorney cited Dubon I and it would concern me what the Applicant’s contentions would be on appeal. Bad facts make bad law.”
According to Rassp, “What is missing from this decision is exactly what the treating physician was requesting and was denied in a case involving a date of injury that was a cumulative trauma from 1972 through January 24, 2001. Like so many injured workers who obviously have a chronic pain syndrome, it is likely that this case involved medication management that is being denied by UR and upheld by IMR. This occurs regardless of the fact that in many cases, perhaps this one included, where the use of medications has maintained an injured worker’s functional stability for years, until they are cut off under a medically unproven ‘weaning’ process that the ODG and ACOEM guidelines promote.”
“It is too bad the current chronic pain treatment guidelines do not allow continuation of medication management that promotes functional stability rather than requiring functional improvement,” says Rassp. “This case is a great example of the success of the cost containment function of UR and IMR regardless of how well this injured worker was doing before her treatment was altered by this process. Let’s not lose sight of the big picture in these cases, and I think the dissenting opinion hints to the consequences of this process being abused in cases like this one.”
Read the Hacker noteworthy panel decision.
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