California: Constitutional Challenge to Independent Medical Review: Stevens v. W.C.A.B.

California: Constitutional Challenge to Independent Medical Review: Stevens v. W.C.A.B.

This case summary below is reprinted from California Compensation Cases. Lexis.com and Lexis Advance online subscribers receive daily updates for cases and weekly updates for writ denieds.

© Copyright 2014 LexisNexis. All rights reserved.

Frances Stevens, Petitioner v. Workers' Compensation Appeals Board, Outspoken Enterprises, Inc., State Compensation Insurance Fund, Respondents

Civil No. A141435

Court of Appeal, First Appellate District, Division One

79 Cal. Comp. Cases --, 2014 Cal. Wrk. Comp. LEXIS 82 (lexis.com), 2014 Cal. Wrk. Comp. LEXIS 82 (Lexis Advance)

June 17, 2014 Writ of Mandate and Review Denied

PRIOR HISTORY: W.C.A.B. Nos. ADJ1526353 [SFO 0441691]--WCJ Francie Lehmer (SFO)

DISPOSITION: Petition for writ of mandate and writ of review denied

CALIFORNIA COMPENSATION CASES HEADNOTES

Medical Treatment—Independent Medical Review—Court of Appeal denied applicant’s petition for writ of mandate and writ of review challenging constitutionality of independent medical review process in Labor Code §§ 4610.5 and 4610.6, and denied respondents’ motions to dismiss petition as premature, when applicant’s appeal from independent medical review determination (filed after defendant denied treatment recommendations and independent medical reviewer determined treatment was not medically necessary) was pending before WCAB and, prior to any action being taken by WCAB on applicant’s appeal, applicant sought writ of review or mandate asserting that independent medical review procedures in Labor Code § 4610.6 violate due process because they provide for review of medical necessity recommendations by anonymous, non-treating and non-examining physician, prevent cross-examination of independent medical review physician, and specifically prohibit appellate review of independent medical review decisions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2], 22.05[6][b][iv].]

CALIFORNIA COMPENSATION CASES SUMMARY

Applicant sustained industrial injury to both feet, both shoulders, her low back, and her psyche on 10/18/97, while employed as a magazine editor for Defendant Outspoken Enterprises, insured by SCIF. The WCJ issued an F&A, in which she awarded Applicant 100 percent PD, entitling Applicant to future medical care. Subsequently, Applicant’s treating physician, Dr. Jamasbi, made several requests for authorization of medical treatment, including pain medication management and additional home health care. SCIF denied authorization for the medical treatment after submitting the requests to UR pursuant to Labor Code § 4610. In response to the UR denials and pursuant to Labor Code §§ 4610.5 and 4610.6, Applicant filed an IMR application with Maximus Federal Services, Inc., the IMR organization designated by the AD to perform the IMR. Maximus found that the requested treatment was not medically necessary as defined by the applicable medical treatment guidelines.

Applicant filed an appeal of the IMR decision with the WCAB, claiming in relevant part that the decision involved an erroneous finding of fact and that the AD had exceeded her powers. Applicant also raised constitutional challenges to the IMR process. Applicant’s appeal was set for hearing before the WCAB on 5/19/2014.

Prior to any action taking place on the appeal, Applicant filed a Petition for Writ of Mandate and Writ of Review, contending in relevant part that: (1) the Labor Code § 4610.6 IMR process violates due process because it provides for review of medical necessity recommendations by an anonymous, non-treating and non-examining physician, prevents cross-examination of the IMR physician and prohibits appellate review of IMR decisions; and (2) it is appropriate for the Court of Appeal to grant a writ to determine the constitutional validity of Labor Code § 4610.6, since the WCAB has no jurisdiction to rule on the constitutionality of statutes.

SCIF moved to dismiss the Petition for Writ of Mandate and Writ of Review on the bases that there was no final decision from the WCAB from which a petition for writ could be taken, and that Applicant had an adequate remedy before the WCAB since her appeal was still pending. SCIF also filed an Answer, contending in relevant portion that the Legislature did not exceed its constitutional authority in enacting the IMR provisions for resolving medical treatment disputes under Labor Code § 4610.6, and that, contrary to Applicant’s position, Labor Code § 4610.6(i), restricting the WCJ, the WCAB, or any higher court from making a determination of medical necessity contrary to the determination of the IMR organization, does not violate California Constitution, Article XIV, Section 4’s requirement that all decisions are subject to appellate review, because the only permissible judicial review of medical treatment recommendations is whether the recommendations are supported by substantial evidence. According to SCIF, Labor Code § 4610.6(h)(5), which allows for appellate review of IMR determinations that result from a “plainly erroneous express or implied finding of fact, and not a matter that is subject to expert opinion,” preserves appellate review for substantial medical evidence.

The AD filed an Answer, contending in relevant respects that: (1) the Petition for Writ of Mandate and Writ of Review should be dismissed as premature because Applicant’s appeal is still pending below, and because Applicant still has an adequate remedy before the WCAB; (2) the Legislature properly exercised its authority in developing a procedure that utilizes IMR for the determination of medical necessity; (3) Labor Code § 4610.6 does not violate Applicant’s right to due process because the parties are fully apprised of evidence, have an opportunity to inspect documents and offer rebuttal evidence, and the statute does not infringe on the right to cross-examine witnesses and, additionally, allows for meaningful judicial review; (4) the dispute over medical necessity is not a legally cognizable dispute within the meaning of California Constitution, Article XIV, Section 4; and (5) Applicant failed to show that the IMR process for resolving medical treatment disputes denies substantial justice in all cases expeditiously and without encumbrance.

An Amicus brief was filed by California Workers’ Compensation Institute and Property Casualty Insurers Association of America, stating in relevant portion that the legislative adoption of IMR pursuant to SB 863 was the result of decades of studies and reforms implementing a treatment dispute resolution process that is faster, less expensive, and objective and results in higher quality treatment without encumbrance and achieves substantial justice.

The California Chamber of Commerce also applied to submit an amicus brief, but its application was denied by the Court of Appeal.

WRITS DENIED and respondents’ motions to dismiss Petition for Writ of Mandate and Writ of Review DENIED June 17, 2014.

By the Court:

“The application to file an amicus brief by California Chamber of Commerce is denied. The request for judicial notice by California Chamber of Commerce is denied. Respondents’ motions to dismiss the petition for writ mandate and writ of review and are denied. Petitioner’s motion to augment the record is granted. The petition for writ of mandate and writ of review is denied.”

Margulies, Acting P.J., Dondero, J., and Becton, J., Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

COUNSEL: For petitioner--Law Office of Joseph C. Waxman, by Joseph C. Waxman, James J. Achermann

For respondent SCIF--SCIF, by Mary Huckabaa, Assistant Chief Counsel, David M. Goi, Senior Appellate Counsel, William L. Anderson, Appellate Counsel

For respondent Acting Administrator, State of California/Division of Workers' Compensation--Division of Workers' Compensation, by George Parisotto, Acting Chief Counsel, Yvonne M. Hauscarriague, Counsel

For California Workers' Compensation Institution and Property Casualty Insurers Association of America, as amicus curiae on behalf of SCIF and Administrative Director, DWC--Law Offices of Allweiss & McMurtry, by Michael A. Marks

For California Chamber of Commerce, as amicus curiae on behalf of respondents (application to file amicus brief denied by Court of Appeal 6/17/2014)--Haight, Brown & Bonesteel, by Jules Solomon Zeman, Melinda Carrido

© Copyright 2014 LexisNexis. All rights reserved. This article is reprinted from California Compensation Cases.

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