Applicants are filing more and more petitions asking the Workers’ Compensation Appeals Board to invalidate Independent Medical Review determinations, which has made it very important to know exactly how to analyze them and respond to them.
The purpose of this article is to summarize the applicable statutes, standard of review, case law and limitations applicable to a Petition Appealing the Administrative Directors Independent Medical Review (IMR) Determination. (This article does not touch upon the IMR process in and of itself – just what can happen after IMR reaches their final determination.)
What exactly is a Petition Appealing the Administrative Directors Independent Medical Review Determination?
An applicant who disagrees with a medical treatment determination made through the Independent Medical Review (IMR) may file a verified petition (appeal) in order to challenge the IMR decision. These petitions usually come across your desktop when Utilization Review has timely denied the Primary Treating Physician’s request for authorization and IMR upholds the determination. A proper response to such a petition should be filed to ensure the WCAB fully appreciates the inherent limitations of such an appeal.
The Controlling Statute
The IMR appeals process is governed by Labor Code Section 4610.6 et. seq. There are only five grounds for appealing IMR determinations and they are:
- The administrative director acted without or in excess of the administrative director’s powers.
- The determination of the administrative director was procured by fraud.
- The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.
- Their determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
- 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. (Citation: Labor Code Section 4610.6 (h))
The applicant or their attorney has 30 days from the date the IMR adverse determination was mailed to file their petition. In California the 30 days is extended by 5 days per the California Code of Civil Procedure.
Applicable Standard of Review
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 above referenced enumerated grounds for appeal.
The Typical Petition
The typical applicants Petition Appealing the Administrative Director’s Independent Medical Review Determination will often curiously leave out the applicable standard of review and the enumerated requirement that the mistake of fact must be “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.”
The typical petition is also usually loosely based on number five (5), which is the section that talks about how the “determination was the result of a plainly erroneous express or implied finding of fact.” This is likely because establishing an appeal based on grounds 1-4 may prove difficult because the IMR reviewer’s name must be kept confidential as a matter of law. See Lab. Code 4610.6(f).
However one might ask, how can you prove fraud, material conflict of interest or bias if you don’t know who the reviewer is? This statute mandating confidentiality was challenged as a violation of due process in Zuniga v WCAB (2018) 19 Cal App. 5th 98. The applicant wanted to depose the reviewer.
The 1st District Court of Appeal concluded the WCAB has no authority to order the disclosure of the identity of the IMR reviewers. They found no ambiguity in Labor Code Section 4610.6(f) which states that IMR shall keep the names of the reviewers confidential in all communications with individuals outside the organization. They reasoned the IMR reviewers are not adversaries to the claimant but rather simply decision makers.
The Burden of Proof
The legislature places the burden of proof upon applicant and requires applicant to jump over a very high hurdle by stating the IMR determination is presumed correct and can only be reversed by clear and convincing evidence of one or more of the stated statutory grounds for appeal.
What else do the Courts say?
The 1st DCA in Stevens v. WCAB (Outspoken Enterprises et al.) (2015) 241 Cal. App. 4th 1074, 80 CCC 1262 upheld the constitutionality of the IMR process, “the purpose of which was to prohibit the WCAB from re-weighing the evidence and making a contrary factual determination about medical necessity.”
Moreover, the Legislature enacted a social policy that medical issues were to be determined by evidence-based medical guidelines. IMR was enacted to avoid bias of different medical examiners in determining medical necessity and in its place required independent and unbiased medical professionals to make determinations regarding medical necessity. See also State Comp. Ins. Fund v. WCAB (Margaris) (2016) 248 CA 4th 349, 81 Cal. Comp. Cases 561. According to the appellate court in Margaris, the WCAB has no jurisdiction to set-aside the determination of IMR based on medical necessity because the legislative purpose was to exclude judges and the WCAB from determining medical issues. The Margaris court further held that even though the IMR determination was in fact 13 days late, the 30 day response requirement was directory only and therefore the IMR determination was still binding.
Applicant’s Petition was granted, what now?
If the determination of the Administrative Director is reversed, the dispute shall be remanded to the Administrative Director to submit the dispute to Independent Medical Review by a different independent medical review organization. See Labor Code Section 4610.6 (I). If a different organization is not available after remand, the AD shall submit the dispute to the original medical review organization for review by a different reviewer. In no event shall Worker’s 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. LC 4610.6(I).
In other words, if the WCJ applies one of the five enumerated statutory grounds for appeal and reverses the IMR decision, applicant wins another IMR review. The purpose of the limited statutory remedy is consistent with stated legislative intent of ensuring independent doctors, not judges are making medical determinations.
Something to keep in mind
Labor Code 4600 (b) amended in 2004 specifically states “notwithstanding any other law,” medical treatment that is reasonably required to cure or relieve the injured worker from the effects of the injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to labor code section 5307.27. In other words, reasonable and necessary is now defined by statute- specifically Labor Code Section 5307.2, and “shall incorporate the evidence-based, peer reviewed, nationally recognized standards of care recommended by Section 77.5 or Medical Treatment Utilization Standards (MTUS.)
As such, any treatment recommendation would still need to be consistent with the MTUS, the ACOEM Guidelines or other nationally based peer reviewed protocols. See also CCR 9792.21 (C) which provides “recommended guidelines set forth in the MTUS are presumptively correct on the issue of extent and scope of medical treatment.” Who better to determine whether medical treatment requests are consistent with the medical guidelines than an Independent Medical Reviewer?
Applicants’ attorneys often inappropriately use the IMR appeal process as a veiled attempt to have the WCAB re-weigh the medical evidence. Understanding the very narrow enumerated bases for appeal, the standard of review, the controlling case law and the public policy reasons behind having independent doctors make medical decisions is essential for properly defending such petitions.
Michael D. Patrick is a partner at the Bradford & Barthel’s Sacramento office. Mr. Patrick has practiced workers’ compensation defense for over 14 years and is a Certified Specialist in California Workers’ Compensation Law. If you have any questions concerning this BLOG article or any other legal matter of concern, please do not hesitate to contact him at firstname.lastname@example.org.
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