California Independent Medical Review Appeals: Case of First Impression on Meaning of a “Plainly Erroneous” IMR Determination

In McAtee v. Briggs & Pearson Construction, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s decision denying the applicant’s appeal of an Administrative Director’s independent medical review (IMR) determination that Duragesic patches the applicant used to treat his 1/21/2001 industrial back injury were not medically necessary because the underlying findings of the reviewer which supported the IMR determination were mistaken.

In particular, the reviewer found no indication of improved function or reduced pain with the applicant’s use of the Duragesic patches. In addition, the reviewer did not find any documentation about side effects the applicant may have experienced or anything regarding whether or not the applicant’s use of the medication was aberrant.

However, report evidence in the record from Christopher Chen, M.D., the applicant’s former treating physician, did document specific improvements in the applicant’s condition. Dr. Chen’s medical report records also mentioned tapering the applicant’s use of the medication as tolerated as well as his office policy of conducting random patient toxicology screenings to monitor narcotics use, avoid diversion and identify substance abuse. The record evidence accordingly did show improved function and reduced pain and also addressed issues concerning the applicant’s side effects and his potential aberrant use of the medication consistent with the Medical Treatment Utilization Schedule.

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As a result, the WCAB concluded that there was clear and convincing evidence that the IMR determination was the result of a plainly erroneous finding of fact as a matter of ordinary knowledge and not a matter that was subject to expert opinion as described in Labor Code § 4610.6(h)(5) [LC 4610.6]. The determination was therefore without or in excess of the Administrative Director’s powers as described in Labor Code § 4610.6(h)(1). The WCAB remanded the matter to the Administrative Director for a new IMR by a different reviewer.

Commentary:

A major provision—and possibly the most notable aspect—of Senate Bill 863 was the adoption of the IMR process. The concept was to have IMR serve as the appeals process when UR denied a treating physician’s recommendation of medical care. The IMR determination was anticipated to be the end of the treatment dispute. There would be no more QME’s or AME’s addressing the disputed treatment. More significantly, those “liberal” WCJ’s would no longer be deciding treatment disputes. In fact, a stated public policy behind SB863 was to preclude WCJ’s from making determinations regarding “medical necessity.” SB863, and more specifically the new Labor Code Section 4610.6(h), allowed for only very limited grounds for appealing an IMR determination. Three out of the five grounds for appeal involved fraud, conflict of interest and bias. The workers’ compensation community wondered how an injured worker would prove those grounds of appeal when the identification of the IMR reviewer was to be kept anonymous.

The first and fifth grounds for appeal, specifically, Sections 4610.6(h)(1) and (5), were more interesting however. The language in 4610.6(h)(5) was so specific it was obviously intended to have a very precise application. No one, however, knew exactly what that application was supposed to be.

That’s what makes this case so interesting and potentially important. First, it’s the inaugural opinion coming from the WCAB addressing sections 4610.6(h)(1) and (5). Second, it tells us that the WCAB can look behind the determination of the IMR reviewer.

Here, the IMR reviewer looked at the MTUS, looked at various records, and denied the treatment. The WCAB looked at the same records that the reviewer looked at and came to the conclusion that they did not say what the reviewer thought they said. The panel found that the reviewer’s conclusion that the records supported a lack of functional improvement with the treatment when the records, if fact, suggested the injured worker experienced a functional improvement, constituted a “plainly erroneous finding of fact not subject to expert opinion” as described by Section 4610.6(h)(5).

Many were concerned that section 4610.6(h)(5) was going to have a very limited application. For example, that section could only be invoked when the reviewer considered the wrong injured worker or the incorrect treatment modality. McAtee stands for the proposition that the underlying assumptions made by the reviewer in denying the treatment also have to be correct. If the IMR reviewer mis-reads, or even discounts, treatment records that support the criteria as provided for by the MTUS, then there may be a “plainly erroneous finding of fact” as described by section 4610.5(h)(5).

Much like the practitioners and the WCAB were doing when confronted with a UR issue under Dubon v. World Restoration (2014) 79 Cal. Comp. Cases 566 [79 CCC 566] (Appeals Board en banc opinion) (Dubon I), McAtee demands a careful consideration of the assumptions made by the IMR reviewer.

Read the McAtee noteworthy panel decision.

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