Workers Comp Zone


Could the California courts finally be ready to rule on the constitutionality of Independent Medical Review?

We may be on the verge of seeing that issue decided.

On December 3, 2014, the California Court of Appeal First Appellate District Division One granted the petition for writ of review filed San Francisco attorney Joseph Waxman on behalf of Frances Stevens (the case is Frances Stevens, Petitioner, v. WCAB and Outspoken Enterprises/State Compensation Insurance Fund ADJ1526353).

In June 2014 the Court of Appeal had summarily denied a petition for a writ filed by Waxman in April 2014. At that time Waxman had not exhausted his administrative remedies. Waxman did so and then refiled for the writ, which was then granted.

The basis facts in the case are important.

Stevens had been found permanently and totally disabled (100%) by the workers’ comp judge. Her condition required use of a wheelchair and defendant had provided assistance by a home health aide. After that aide was injured, her physician requested that another aide be provided to Stevens, along with four medications.

Apparently Stevens had a history of falling. Her doctor noted that needed assistance with personal hygiene tasks such as bathing and dressing as well as grocery shopping, meal prep and the like.

The SCIF adjuster submitted the treating physician request to UR which then denied both the home health aide and the four medications. Stevens filed an IMR request. Seven months later an IMR determination was issued by Maximus.

Maximus upheld the UR denial of all of the requests.

Stevens then appealed the Maximus determination to the WCAB.

Ruling on the appeal, the WCJ wrote that the WCAB did not have the jurisdiction to determine the constitutionality of Labor Code 4610.5 and 4610.6 which deal with IMR.

Under Labor Code 4610.6(h) the WCAB can only set aside a Maximus IMR determination on very limited grounds.

Those grounds include fraud, a material conflict of interest, bias due to race, ethnicity, religion, age, sexual orientation, color or disability, or per 4610.6(h)(5) where “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” and “not a matter that is subject to expert opinion”.

The workers’ comp trial judge had no basis to find fraud or bias since the statute does not require that Maximus reveal the identity of the IMR reviewer.

And the WCJ ruled that the conditions of a plainly erroneous  fact were not met, and thus denied Stevens’ appeal of the IMR determination.

Stevens filed a Petition for Reconsideration with the Workers’ Compensation Appeals Board, contending that the limitations on IMR appeals violated due process and her rights under Article XIV, section 4 of the California Constitution.

In a panel decision issued August 11, 2014, Commissioners Sweeney, Zalewski and Deputy Commissioner Rick Dietrich denied the request for reconsideration filed by Stevens.

To understand what is at stake, it’s important to understand  the logic of the WCAB panel. Here, at some length, is their analysis:

“The effect of the limiting provisions of section 4610.6(h) and (i) is to preclude meaningful appeal of an IMR determination to the WCAB under many circumstances. For example, section 4610.6(d) requires that the IMR determination of a medical treatment request be made within 30 days from the receipt of necessary documents. However, it appears that the 30 day time period was far exceeded in this case as shown by the 7 month delay between the date when the IMR was requested and the date the IMR determination eventually issued. There are no consequences for failing to expeditiously conduct an IMR like those that may occur when there is untimeliness in the UR process.”

“The lack of a meaningful appeal of the merits of an IMR determination to the WCAB also precludes the Appeals Board from addressing conflicts between the law establishing the scope of medical treatment an employee is entitled to receive under section 4600, and the IMR provider’s understanding of what constitutes medical treatment. Such a conflict appears to exist in this case with regard to the provision of a home health aide.”

“it is well established that a defendant is obligated by section 4600 to provide an injured worker with home health services when reasonably required to “cure or relieve” the effects of the industrial injury, and that those services may include attendant services to help with bathing, dressing, housekeeping and shopping. (Lab. Code 4600(h); Henson v. WCAB (1972) 37 CCC 454 [housekeeping services may be reimbursable under section 4600 as medical treatment]; Neri-Hernandez v. Neri-Geneva Staffing Board en banc) ADJ7995806, June 12, 2014) 79 Cal.Comp Cases__[home health care services are included in the section 4600 definition of medical treatment].)”

The WCAB panel went on to state that:

“In this case, the IMR determination states that “Medical treatment does not include home maker services like shopping, cleaning and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed.” In that applicant’s condition requires “care” other than homemaker services it is uncertain why the quoted statement was included in the IMR determination. It is also unclear if it is the basis for the IMR determination.

However, “uncertainty” and “lack of clarity” are not listed in section 4610(h) as grounds for appealing an IMR determination to the WCAB and we have no statutory authority to address those concerns in this case. Moreover, even if such an appeal was available, the only remedy allowed by section 4610.6 is to order another IMR.”

Further, the panel noted that:

“In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the legislature in section 4610(h) by clear and convincing evidence.”

In a somewhat shocking admission, the panel states:

“We acknowledge applicant’s contention that the lack of a meaningful IMR appeal and remedy is inconsistent with the California Constitution’s mandate that the workers’ compensation law “shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (cal. Const., Article XIV, Sec.4) However, as discussed in the Report, the WCAB has no authority to determine the constitutionality of the IMR statutes as sought by applicant. (Greener v. WCAB (1993) 58 CCC 793; Niedle v. WCAB (2001) 66 CCC 223; cf. Cal. Const., Article III, Sec.3.5)”

We can expect amicus briefs to be filed by most of the major workers’ comp stakeholder groups. Indeed, briefs were already filed by many of them after Waxman filed the first petition for a writ.

At the time SB 863 was being negotiated, there were concerns among some proponents regarding the constitutionality of the IMR scheme being proposed. Two memorandums surfaced, to the consternation of some of the negotiators who were putting the package together.

A link to pdfs of those memoranda is available at the end of this post.

Some two years after the enactment of SB 863 the IMR process remains one of the most controversial reforms.

It’s time to get a ruling on the constitutionality of that process.


Constitutionality of Proposed Labor Code Section 4610.6

Can the Legislature Limit An Appeal

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Julius Young