Court of Appeal To Hear Oral Arguments Regarding the Constitutionality of the Independent Medical Review Process
By Amy C. Leung, Esq. and Richard I. Felton, Esq.
On September 30 the California Court of Appeal First Appellate District is set to hear oral arguments on the case of Frances Stevens v. Workers' Compensation Appeals Board and Outspoken Enterprises/SCIF. This case has a potentially significant impact on the issue of injured workers' ability to obtain medical treatment in the state's Workers' Compensation system.
In 2013, Senate Bill (SB) 863 initiated the Independent Medical Review (IMR) process, which governs injured workers' rights to obtain medical treatment. All medical treatment requests first go through Utilization Review (UR) in which a doctor hired by the insurance company decides whether to authorize medical treatment, without even examining the worker. If treatment is denied, the worker has only 30 days to appeal to IMR. As attorneys, we submit these IMR appeals on behalf of our clients.
California has contracted with a company called Maximus, which has doctors reviewing the IMR applications and deciding whether or not to allow the treatment. The insurance company is supposed to send all relevant information and documents to Maximus for review. The IMR physician, who is anonymous, does not examine the worker. IMR, not the Workers' Compensation Judge, decides treatment issues.
The Frances Stevens case involved a 100 percent permanent and totally disabled worker who needed to use a wheelchair. For several years she had the assistance of a home health aide and used certain medication. The employer's UR company denied the requested ongoing home health aide and medication. Stevens requested review by IMR, and after a delay of seven months, the IMR physician at Maximus upheld the denials of medical treatment. The Workers' Compensation Appeals Board (WCAB) upheld the IMR decision. Ms. Stevens is challenging the IMR process, asserting its lack of due process and denial of any meaningful access to the courts to resolve medical treatment disputes violates the California State Constitution.
As the bases to appeal IMR decisions are extremely limited and restrictive, in effect the anonymous IMR doctor has the final say regarding treatment issues. The law does not allow the Workers' Compensation Judge to decide whether the treatment is reasonable or necessary, or to order the treatment be provided. We believe that a law allowing final treatment issues to be decided by an anonymous doctor who cannot be cross-examined, without effective judicial review, denies injured workers due process. We agree with Ms. Stevens that the denial of due process and the undue delays of the UR/IMR process violate the California State Constitution and the mandate of the Workers' Compensation system to provide prompt and efficient medical care to the state's injured workers.
The Stevens case has the potential of impacting the medical treatment process for thousands of injured workers in California who are currently subject to the IMR process in place after SB 863.
The attorneys at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK) are carefully monitoring case law and appellate decisions pending on these complicated medical treatment issues. GEK attorneys continue to fight for their clients' rights to medical treatment, including through the IMR process and at the WCAB. We will provide an update once the California Court of Appeals renders a decision on the Stevens case.