Workers' Compensation

WCAB Panel Finds UR IMR Physician Need Not Be Licensed in California

The recent noteworthy panel decision of Navroth v. Mervyn’s Stores, 2016 Cal. Wrk. Comp. P.D. LEXIS --, is just fascinating for so many reasons beyond the content of the finding itself. How often does a pro per applicant make important case law despite the unsuccessful efforts of many talented attorneys before him? How often does a pro per applicant raise a new argument on an important issue that is accepted on appeal? How often does the Board decide to take it upon itself to raise arguments not pled? The answer to all of these questions is, “not very often,” but all of the above occurred in this matter.

First, a brief history of the UR IMR quagmire bringing us up to the present. For the applicant’s attorney, the prevalent feeling is that the current method of reviewing medical treatment requests is a mess. Out-of-state doctors, not necessarily in the same specialty, not necessarily being provided accurate or complete information, seem to be spewing denials based on pre-scripted computer programs that may or may not have relevance to the facts at hand. The process of discovery and appeal are very limited. Even the most defense oriented of attorneys would likely admit that such denials as described, on occasion, are being issued. On the other hand, it was out of control medical spending and outrageous abuse with duplicative reporting and unnecessary services that have been the catalyst for much of the need for reform altogether. Even the most applicant oriented attorney would have to acknowledge that the system needed correction. The defense bar would likely laud the goals of cost containment and theoretically more expeditious determination of treatment as praiseworthy.

There are two main issues that are corollaries of these different perspectives. The first question is, when may either UR or IMR be considered as invalid? The second question is, if either UR or IMR are invalid, does the process start again or can the WCAB retain jurisdiction? Defendants argue for very limited grounds to invalidate the UR or IMR process and wish, at worst, to stay within the process if the decision was found to be defective. On the other hand, applicant’s attorneys argue for broader grounds to find defects in the system. And, they believe that the WCAB with hands on testimony in a more personal approach will provide a more just decision for the applicant.

There really are two main primary types of arguments to attempts to invalidate either UR or IMR. They are either based on broken time deadlines, or on some invalidity of the process itself. Cases are still coming down at a rapid pace but thus far, the Courts have been extremely reluctant to “open the floodgates” for WCAB jurisdiction on UR denials. Dubon II being the most famous example of a case standing for the proposition that seemingly the only basis to attack a UR decision is lack of timeliness. (See Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 [79 CCC 1298] (Appeals Board en banc opinion) (Dubon II))

(Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.)

The more difficult “potential floodgate” argument that the process was not conducted in a valid manner has been far more difficult. Common sense would dictate that if the process was never conducted in the way proscribed by law, the parties should not be allowed to benefit from an inequitable result of their own making. A Decision based on incomplete, inaccurate, or contradictory information, should be void ab initio and any resulting passage of deadlines should not entitle the parties to “try again.” Recently, such claims have made some headway though. See “WCAB Panel Finds Defense Counsel’s Failure to Provide RFA to Claims Administrator Was Unreasonable,” and “IMR Reviewer’s Conclusion Contradicted by IMR Reviewer’s Own Summary of Case.”

This introduction brings us to the interesting case of John Navroth II. Applicant was not happy with an IMR decision by an out-of-state physician denying him requested medical treatment. He appealed the IMR decision to the Trial level, arguing that an out-of-state physician is precluded by law from rendering an IMR decision. He convinced the Judge who issued a Decision accordingly. Upon appeal to the WCAB, the panel differentiated between “MPN IMR” and “UR IMR.” They agreed that an MPN IMR must be licensed in the state of California. However, all members of the panel agreed that the UR IMR physician need not be licensed in California. The entire conclusion is based on the word “includes” used in Labor Code section 3209.3 [LC 3209.3], which they interpret to be roughly “includes but not limited to.”

However, the Decision gets more interesting when the Panel decides to review the record independently. Upon their own volition, a majority of the panel decided to invalidate the IMR decision and send it back to WCAB jurisdiction. The key question addressed is whether IMR deadlines are “directives”, in which case violation of the deadline would merely restart the process. Or, in the alternative whether IMR deadlines are “mandatory”, in which case violation of the deadline would result in return of the matter to the WCAB with complete jurisdiction. Relying on numerous cases going back to 1866 (see Calaveras v. Brockway (1866) 30 Cal. 325 [30 Cal. 325]), the panelists state that that this question hinges on “whether a statute, best protects the citizens and serves the public purpose” of the legislation.” In fact, the panelists then go on to demonstrate how the IMR deadlines are indeed serving a public purpose and therefore are both mandatory which then requires that a violation of any deadline goes back to WCAB jurisdiction. (But, coincidentally, the Court of Appeal may have just resolved this issue in a decision just issued. [See SCIF v. WCAB (Margaris) issued by the 2nd DCA on June 22, 2016, “Appellate Court Holds IMR Timeframes as Directive,” by Richard M. Jacobsmeyer.] The Margaris case resolves the issue, holding that the IMR deadlines are “directive,” and therefore, an IMR decision that was not timely issued does not permit the WCAB to retain jurisdiction to rule on the issue of medical necessity of medical treatment recommended by a treating physician. As a court of appeal decision certified for publication, the Margaris case will be the governing law on the issue unless the Supreme Court or one of the two panels of the Third Division of the Court of Appeal in which this same issue is pending rule differently.)

Justifying the return to WCAB jurisdiction, the Court relies on the statutory and case law regarding violation of UR deadlines. (UR Labor Code section 4610 [LC 4610], Dubon II, SCIF v. WCAB (Sandhagen) (2008) 44 Cal.4th 230 [44 Cal.4th 230].) In an important quote, the panelists write that, “when a UR decision is not timely issued in compliance with statutory deadlines, there is no valid UR dispute for IMR to resolve.” The Court actually lumps together “untimely and invalid UR” as appropriately invoking WCAB jurisdiction. The panelists remind the reader that Labor Code Section 5300(f) [LC 5300] allows the WCAB to retain jurisdiction on virtually any matter. The final take away conclusion: “[T]he Appeals Board retains jurisdiction over medical treatment disputes when the determination is not made pursuant to section 4610.5, which includes untimely IMR decisions.”

The single dissenter agreed that the IMR physician need not be licensed in California. However, they argued that the time deadlines are clearly “directory” so that the matter merely proceeds to another IMR decision. The dissenter writes that, Labor Code section 4610.5 [LC 4610.5] states clearly that, “any dispute over utilization review decision shall be resolved only by IMR.” Neither is untimeliness listed as a ground for appeal of an IMR decision in Labor Code section 4610.6(h) [LC 4610.6]. Finally, Labor Code section 4610.6(i) contains language that, “in no event shall a Workers Compensation Administrative Law Judge, the Appeals Board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.” (Presumably the majority would state that there was no valid IMR decision to begin with.)

However, another amazing thing happens. The lone dissenter looks at another argument raised by our pro per applicant that the majority of the panel did not feel was necessary to address. Our pro per applicant also argued that the MTUS applied by the IMR reviewer had expired and thus the decision was not based on “substantial medical evidence.” So the dissenter actually proposed sending the matter back to the WCAB to rule on this issue.

Takeaway points: Even though this is simply a Board panel decision that is not binding, beware of IMR deadlines and await further case law. Understand that fundamental violations in the process, even apart from time deadlines, may invalidate the entire process, arguably invoking WCAB jurisdiction. Look carefully at the reasoning of the IMR physician to see if it is based on current standards. If not, there may be a substantial medical evidence question. The final question I have is: Who is going to be the first law firm to hire this John Navroth II as a staff para-legal?

Read the Navroth noteworthy panel decision.

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