The writ in Dubon II has been denied. The constitutionality of the IMR system in in play in the pending Stevens case.
Meanwhile, another interesting case involving UR and IMR was recently decided by the WCAB. Thanks to the LexisNexis Legal Newsroom on Workers’ Compensation and attorney Robert Rassp for bringing the case of Loretta Macfarland v. The Permanente Medical Group, Inc., (ADJ 1031497)2015 Cal. Wrk. Comp. P.D. Lexis to my attention.
The case was a 2 to 1 panel decision where Commissioner Sweeney dissented from the majority of Commissioners Zalewski and Brass.
Ms. Macfarland , represented by attorney Mark Gearheart, had a future medical award following multiple surgeries and a thoracotomy. This had apparently left her with a rod in her body which pressed against her aorta.Her treating physicians had found that repeated epidurals and intercostal nerve blocks were the most efficacious means of pain control. A request for an epidural was denied by UR.
The majority on the panel noted that the WCAB was not in a position to rule on the constitutionality of IMR and was limited under Dubon II to dealing only with untimely UR. Furthermore, Commissioners Brass and Zalewski rejected the approach of the dissenter, Sweeney.
Sweeney argued that Macfarland should be allowed “her statutory right to rebut the presumptively correct Medical Treatment Utilization Schedule (MTUS)”.
Here is Sweeney’s logic:
“Labor Code section 4604.5 states that the MTUS “shall be presumptively correct on the issue of: extent and scope of medical treatment. The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines reasonably is required to cure or relieve the injured worker from the effects of his or her injury. The presumption created is one affecting the burden of proof.”
“Whether a party has rebutted a presumption affecting the burden of proof is a legal question and the determination of a legal question must be made by a court. “A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.” (Evid. Code § 600(a).) ”’Preponderance of the evidence’ means that evidence that, when weighed with that oppos’ed to it, has more convincing force and the greater probability o f truth.” (Lab. Code § 3202.5.)
Pursuant to a constitutional grant of authority (Cal. Const., art. XIV, §§ 1, 4), the Legislature created the WCAB and vested it with judicial powers. (Lab. Code, § Ill.) The Legislature further gave the WCAB the “full power, authority, and jurisdiction to try and determine” all workers’ compensation claims and any right or liability arising out of or incidental thereto. (Lab. Code, § 5301, see also Lab. Code, § 5300.) The WCAB is the court with jurisdiction to determine whether a party to a workers’ compensation case has met its burden of proof and rebutted a presumption found in division four of the Labor Code. (Honeywell v. Workers’ Camp. Appeals Bd. (2005) 35 Cal. 4th 24 [70 Cal.Comp.Cases 97]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418 [67 Cal.Comp.Cases 236].)
“The Legislature specifically vested the WCAB with jurisdiction over any controversy relating to or arising out of Labor Code sections 4600 to 4605 inclusive. (Lab. Code § 5304.) Labor Code section 4604 states that “[‘c]ontroversies between employer and employee arising under this chapter shall be determined by the appeals board…except as otherwise provided by Section 4610.5.” Thus, a challenge to the presumptively correct MTUS as set forth in Section 4604.5 is within the jurisdiction of the WCAB. In contrast, Section 4610.5 applies to independent medical review of disputes over UR decisions and is outside the purview of Section 4604 and, accordingly, 5304. Interpreting these statutes together, an applicant may attempt to rebut the MTUS and must be provided with an opportunity to adjudicate whether he or she has rebutted the MTUS under Labor Code section 4604.5 separate from the UR/IMR process discussed in Dubon II. ”
This boils down to who is the decider. Who determines whether the MTUS has been rebutted? Maximus under IMR or the WCAB as a judicial body?
Zalewski and Brass weren’t buying Sweeney’s thesis, and their majority opinion rejects Sweeney’s analysis, opining:
“…..Commissioner Sweeney proposes that applicant should be allowed to rebut the Administrative Director’s medical treatment guidelines in a separate proceeding before the WCAB. Labor Code section 4604.5 provides that the medical treatment guidelines adopted by the Administrative Director are presumptively correct but does not provide the procedure for determining whether the scientific medical evidence establishes that a variance from the guidelines reasonably is required to cure or relieve the injured worker from the effects of his or her injury. The procedure for’making this determination is found in Labor Code sections 4610.5 and 4610.6. This is consistent with the Legislature’s statement of purpose in uncodified section l(e) of SB 863 that “having medical professionals ultimately determine the necessity of requested treatment furthers the social policy of this state…” (Stats. 2012, ch. 363, § l(e).)
Sweeney, on the other hand, had pointed out that:
“Contrary to Labor Code sections 5304 and 4604.5, applicant has not been provided a forum to rebut the Administrative Director’s medical treatment utilization schedule (MTUS). In contrast to 4604.5 and the legal concept of rebuttal, Labor Code Section 4610.5 establishes a methodology which the independent medical reviewer must follow to determine the “medically necessity” of a treatment request that was not approved by a UR decision. It requires the application of tiered standards applied in ranked order, “allowing reliance on a lower ranked standard only if every higher ranked standard is inapplicable to the employee’s medical condition” and the highest ranked standard is “guidelines adopted by the administrative director pursuant to Section 5307.27.1 (Lab. Code § 4610.5(c)(2) and (c)(2)(A).) Thus, the IMR process itself is not and cannot be a forum where. a statutory legal presumption may be challenged or rebutted, according to the plain language of461O.5(c). “
Sweeney notes that:
“Rebuttal is not a medical issue but a legal issue that must be determined by a court. The right of rebuttal is guaranteed by Labor. Code Section 4604.5. Labor Code sections 5304 and 4604 give theWCAB jurisdiction to determine controversies relating to or arising out of Labor Code section 4604.5 which states that the MTUS is rebuttable. Here, the utilization review decision denied applicant’s medical treatment based upon the MTUS (specifically, subdivisions (b) and (c) of section 9792.25 which is part of the MTUS). (Cal. Code Regs., tit. 8, § 9792.21.) Accordingly, applicant is entitled to present evidence that she has rebutted the MTUS. “
I would expect that a Petition for a Writ will be filed in this case with the California Court of Appeal First District, which may or may not take the case. California appellate courts are not always in a hurry to rule on workers’ comp issues.
To some extent this case involves issues that are present in Frances Stevens v. Outspoken Enterprises. Do California courts (and the WCAB specifically) have some jurisdiction over medical treatment determinations?
Frankly, however, I think that the outcome in Stevens will be determinative.
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