CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
It’s been nearly a decade since the Legislature replaced Workers’ Compensation Judges (WCJ) and the Workers’ Compensation Appeals Board (WCAB) as the arbiters of medical treatment disputes involving industrially injured workers. We have become accustomed to the resolution of such disputes through utilization review (UR), with any appeal being conducted through independent medical review (IMR). We also know that the Legislature expressly forbids a WCJ, the WCAB or a higher court from making a medical necessity determination contrary to the determination of IMR. (Lab. Code, § 4610.6(i); Ramirez v. Workers’ Comp. Appeals Bd. (2017) 10 Cal. App. 5th 205, 212 [82 Cal. Comp. Cases 327].) But we shouldn’t lose sight of the fact that, albeit limited, WCJs and the WCAB continue to have a role in the appeal of an IMR determination. The recent panel decision, Mackie v. Planada Unified School District, 2021 Cal. Wrk. Comp. P.D. LEXIS 19, underscores the significance of that role. While Mackie doesn’t set a new standard for granting appeals of IMR determinations, it provides a clear example of how and why the IMR determination was the result of a plainly erroneous finding of fact. Additionally, it contains a thoughtful discussion regarding the specialty of the medical expert who conducts the IMR.
Kenneth Mackie (applicant) sustained an admitted industrial injury and received an award of further medical treatment to cure or relieve the effects of his injury. Applicant is receiving treatment from an audiologist for tinnitus. Applicant’s treating audiologist submitted a request for authorization of a tinnitus nightly acoustic therapy system and device programming and fitting. Defendant’s UR timely denied the request, and applicant filed an appeal of that denial. IMR issued a determination upholding the denial of the requested treatment and applicant appealed the IMR determination on two grounds. First, that the IMR reviewer failed to review the entire medical record provided. Second, that the specialty of the doctor who conducted the IMR was not appropriate.
A trial was held on applicant’s appeal of the IMR determination, and the WCJ issued a Finding and Order denying the appeal and upholding the determination. Applicant petitioned for reconsideration, claiming that the IMR reviewer did not review three pertinent research studies concerning tinnitus and treatment of tinnitus that were admitted into evidence. Applicant also argued that even though his treating physician is an audiologist, the IMR reviewer is a specialist or certified in pain management, anesthesiology, and hospice and palliative care, and thus not competent to address treatment for tinnitus. Specifically, applicant claimed that the IMR physician was not knowledgeable about the treatment of tinnitus, including the proposed treatment, as well as the guidelines and protocols concerning the recommended treatment.
In his Report and Recommendation on Reconsideration, the WCJ confessed error in his conclusion regarding whether the IMR reviewer reviewed the three research studies admitted into evidence at applicant’s behest. The three reports were not reviewed. The WCJ recommended that applicant’s appeal of the IMR determination be granted on the grounds that the Administrative Director acted without or in excess of his authority (Lab. Code § 4610.6(h)(1)) and that the determination was the result of a plainly erroneous express or implied finding of fact (Lab. Code § 4610.6(h)(5).) As regards the contention that the IMR reviewer was not competent to review the requested treatment, the WCJ explained a lack of clear and convincing evidence of that contention but deferred to the Appeals Board panel.
The panel’s decision reminds us of the import of an appeal of an IMR determination. Labor Code section 4610.6(h) presumes an IMR determination, which automatically becomes the decision of the Administrative Director, to be correct. The decision can only be set aside by clear and convincing evidence of one or more of the following grounds: (1) the Administrative Director acted without or in excess of his or her powers; (2) the determination of the Administrative Director was procured by fraud; (3) the independent medical reviewer was subject to a material conflict of interest that is in violation of Labor Code section 139.5; (4) the determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color or disability; or (5) the determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on information submitted for review pursuant to Labor Code section 4610.5 and not a matter that is subject to expert opinion. (Lab. Code, § 4610.6(h).) Notwithstanding the inability of the WCAB to change a medical necessity finding when it hears an appeal of an IMR determination, its review is meaningful because it has the authority to decide whether the determination was adopted without authority or based on a plainly erroneous fact that is not a matter of expert opinion. (Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal. App. 4th 1074, 1100 [80 Cal. Comp. Cases 1262].)
In this case, the panel adopted the WCJ’s reasoning that the IMR reviewer’s failure to review the three expert medical reports submitted in evidence by applicant is clear and convincing evidence that the IMR determination is premised on a plainly erroneous fact since the IMR reviewer is required to conduct a review of the complete medical record provided. (Lab. Code, § 4610.6(b); Cal. Code Regs., tit. 8, § 9792.10.5(b)(3).) The panel specifically endorses the WCJ’s reliance on Sanchez v. Central Contra Costa Transit, 2020 Cal. Wrk. Comp. P.D. LEXIS 189 (Sanchez), in which another panel found the failure of an IMR physician to review the complete medical record as he or she is obligated to do made the IMR determination incomplete and, therefore, defective. Further, the Sanchez panel noted that expert opinion was not needed to determine the completeness of the IMR determination because the failure to review the complete medical record in a case is a matter within the realm of ordinary knowledge.
As in Sanchez, the Mackie panel concluded that the IMR Determination was based on an incomplete review of the medical record, rendering the determination defective as a matter within the realm of ordinary knowledge. Consequently, the Administrative Director acted without or in excess of his powers by adopting the determination. In accordance with Labor Code section 4610.6(i), the panel granted the appeal and remanded the matter to the Administrative Director for submission of the dispute to a different IMR organization or, if none, to a different IMR reviewer. Of interest, the panel recommends that the IMR reviewer should be an audiologist.
The panel’s recommendation is notable, especially since there is no statutory requirement that the medical professional selected to conduct the IMR hold the same specialty as the treating physician. Labor Code section 139.5(d)(4)(A) requires the reviewer to be a licensed physician as defined by Labor Code section 3209.3 and be in good standing. Additionally, the reviewer is required to be a clinician knowledgeable in the treatment of the employee’s medical condition, knowledgeable about the proposed treatment and familiar with the guidelines and protocols for treatment of the condition. The panel’s recommendation makes good sense, given that applicant’s treating physician is an audiologist, the requested treatment is specific to tinnitus—a tinnitus nightly acoustic system, and the IMR reviewer is an anesthesiologist and specialist in pain management, hospice and palliative care. Moreover, the IMR organization has a statutory obligation to ensure that the method it uses to select its reviewers “achieves a fair and impartial panel of medical professionals who are qualified to render recommendations regarding the clinical conditions and the medical necessity of treatment or therapies in question.” (Lab. Code § 139.5(d)(3)(C).)
Whether the reviewer who conducted the IMR in Mackie was sufficiently knowledgeable about tinnitus and the specific treatment modality requested by the treating audiologist is unknown. The WCJ reported that no evidence was presented concerning the reviewer’s knowledge of tinnitus, the proposed treatment and the guidelines and protocols relevant to the treatment of tinnitus. Although the name of the IMR reviewer is confidential (Lab. Code § 4610.6(f)), the expertise and qualifications of the reviewer are not and must be disclosed. It seems likely that we can expect disputes over the specific qualifications of an IMR reviewer to become an issue in future appeals of IMR determinations. Stay tuned.
Publisher’s Note: This article was written on February 18, 2021. Practitioners should check the subsequent history of this case before citing to it. Reminder: Board panel decisions are not binding precedent.
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