Workers’ Compensation Judges are starting to see appeals of IMR decisions where the parties are raising very interesting arguments at conferences and trials. We expect to see quite a few noteworthy panel decisions in the coming months outlining what the WCAB can and cannot do when a party challenges an IMR decision.
In the noteworthy panel decision of Stevens v. Outspoken Enterprises, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s order denying the applicant’s appeal of a 2/20/2014 independent medical review (IMR) determination that home health care services and four prescriptions requested by the applicant’s treating physician for an 8/16/2013 industrial injury to the applicant’s feet, shoulders, low back, and psyche, were not medically necessary.
The applicant challenged the IMR determination both on constitutional grounds under Cal. Const., Art. XIV, § 4, and on the specific ground that the IMR determination regarding medical necessity was unclear as to its basis. The WCAB determined that:
1. It was without authority to consider the applicant’s constitutional challenges;
2. The WCAB’s jurisdiction to hear appeals from IMR determinations is expressly limited under Labor Code § 4610.6(h) to five specified circumstances;[n1]
3. While the WCAB recognized the uncertainty of the IMR determination in the applicant’s case given the statement in the IMR determination that the medical treatment did not include certain homemaker services, the WCAB was precluded by Labor Code § 4610.6(h) from hearing the appeal on the basis of “uncertainty” or “lack of clarity”;
4. Even if the applicant’s appeal were viable, the applicant’s only remedy under Labor Code § 4610.6(i) is to obtain another IMR determination, as the WCAB (or a higher court) is not permitted to make a determination of medical necessity contrary to the IMR determination; and
5. The effect of the limiting provisions in Labor Code § 4610.6(h) and (i) is to preclude the meaningful appeal of the merits of an IMR determination to the WCAB, such that the WCAB is precluded from addressing the conflicts between the law establishing the scope of the medical treatment to which the employee is entitled under Labor Code § 4600 (such as homemaker services), and the IMR provider’s understanding of what constitutes medical treatment.
Read the Stevens noteworthy panel decision.
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1. Labor Code § 4610.6(h) states as follows:
(h) A determination of the administrative director pursuant to this section may be reviewed only by a verified appeal from the medical review determination of the administrative director, filed with the appeals board for hearing pursuant to Chapter 3 (commencing with Section 5500) of Part 4 and served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:
(1) The administrative director acted without or in excess of the administrative director's 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 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.
(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 the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.
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