PEEKING AT ZUNIGA

Like a giant bear hibernating through winter, California’s workers’ comp system is in a relatively quiet phase.

Yet there’s always notable stuff happening.

For example, despite the fact that in Frances Stevens v.Outspoken Enterprises one panel of the California Court of Appeal, First District upheld the constitutionality of IMR, another panel at that court (Division 2) has agreed to hear a constitutional challenge to IMR.

The case , Saul Zuniga v. WCAB (Interactive Trucking) has been pending at the DCA for over a year, and frankly I had just assumed that the court would deny the writ petition after Stevens. It has not been on the radar of most attorneys.

Meanwhile, the California Supreme Court has not yet issued a writ in response to the appeal filed in Stevens. In fact the court recently extended the time to March to grant or deny the writ petition.

Handicapping why courts take cases is a dangerous endeavor for legal commentators. Yet, the fact that a different division of the same court is willing to review the Zuniga constitutional challenge to IMR seems potentially significant. On the other hand, the court’s order indicates that no briefing is required and that the court was not requiring oral argument (though it could be requested). That might seem to indicate that the court was headed toward a narrow disposition.

The issue in Zuniga revolves around the provision of the IMR statute that protects the confidentiality of the Maximus IMR reviewer, Labor Code 4610.6(i).

One of the difficulties under the IMR statute is that the worker has no way to investigate or prove bias, fraud or conflict of interest since the worker has no way to identify a faceless IMR reviewer’s identity.

California’s IMR statute requires that a prevailing party to an appeal resubmit the issue to another IMR reviewer. So after succeeding in a challenge to an IMR determination, Zuniga sought an order to obtain the name of the IMR reviewer.

Given the confidentiality provision of Labor Code 4610.6(i), the workers’ comp trial judge refused to order the disclosure of the identity of the IMR reviewer. The WCAB panel upheld that decision, refusing to order disclosure.

Meanwhile, a second IMR reviewer was apparently appointed, and as a result some but not all of the treatment requests were approved. SCIF claims that Zuniga should have appealed that decision, so there is a procedural dispute which could be key.

In a response to SCIF’s answer to the writ petition, Zuniga noted that:

“Petitioner Saul Zuniga has petitioned this Court for a writ of review on the grounds that, by denying his petition to order the disclosure of the independent medical review physicians, the Workers’ Compensation Appeals Board Judge (“the WCJ”) either acted outside of his authority by failing to act within his authority, or that,, if the WCJ lacks such authority, the independent medical review procedures of Labor Code section 4610.5 and 4610.6 violate the applicant’s right to due process. Notably, and despite SCIF’s protestations to the contrary, this is not an appeal of an Independent Medical Review determination; it is an appeal of the determination by the Workers’ Compensation Appeals Board that it lacks the authority to enforce its orders under Labor Code Section 4610.6(i).”

Zuniga asserts that he “had a due process right to ensure that the order of the WCJ was followed” and a “due process right to ensure that the IMR organization had assigned the review to a different reviewer.”

So this case sets up a more narrow issue than the larger scale attack on IMR constitutionality which failed in Stevens.

A win by Zuniga would nick the IMR statue, but would not be fatal to it.

One interesting sidebar is that to my knowledge the DWC has not yet contracted with a second organization to perform IMR reviews. So at the moment even if a worker prevails on the basis of some of the limited grounds for an IMR appeal, the matter goes back to Maximus for assignment to a reviewer.

At the very least the DWC and Maximus should outline how such matters will be handled where a judge has nixed the first IMR, and whether special steps will be taken to ensure that correct information is assessed fully and fairly in the second IMR.

The lack of transparency doesn’t pass the smell test, and that may be something that has caught the eye of the First District panel.

Stay tuned.

Julius Young