Legal Challenges Are Made To The Medical Treatment Dispute Resolution Process
By Erika L. Vargas, Esq.
Medical treatment is one of the foundational benefits afforded an injured worker through the Workers' Compensation system. An injured worker goes to his or her physician and a recommendation is made for medical treatment. If the insurance company does not dispute that recommendation, the treatment request will be authorized.
However, in many cases, the insurance company disputes the medical treatment request through a process called utilization review (UR). An injured worker is then limited to filing an appeal through the recently enacted Independent Medical Review (IMR) process. Senate Bill 863, which was enacted into law as of January 1, 2013, created the IMR procedure to resolve UR disputes regarding medical treatment recommendations for injured workers.
This new IMR procedure supposedly would result in resolving medical treatment requests and disputes faster than the previous system, but more than two years after its implementation, that has not proven to be the case. Injured workers and their advocates have become increasingly frustrated with the high denial rate and the increasing delays in receiving medical treatment.
In reaction to what has now proven to be a "failing" medical treatment dispute resolution process, there have been several legal cases that have challenged various aspects of this process. In particular two landmark cases are working their way through the California court system.
The first case, Dubon v. World Restoration, concluded that UR decisions that were defective (i.e., not all of the relevant medical records were forwarded for review, the UR decision was untimely, the UR decision did not meet other technical requirements in the law) still had to be resolved via the IMR process. The court said that an untimely UR decision was the only exception that would allow a Judge to intervene and order medical treatment. This decision took many of the common defective UR disputes out of the purview of the court, and sent them on their way through the IMR process. The IMR process is a medical determination process, not a legal one, and this Dubon decision is being challenged on the grounds that the courts should retain the right to resolve these non-medical disputes arising out of the UR process. The District Court and (on April 1, 2015) the California Supreme Court denied review of the appeal, so the issue will have to work its way back through the court system.
The second case, Stevens v. WCAB (Outspoken Entertainment), seeks to address the constitutionality of the IMR process and is pending before the 1st District Court of Appeal. Specifically, the argument in this case is that the IMR process violates the California constitution because of the limited ability to appeal IMR, ultimately depriving injured workers of their due process right to a fair hearing before a court. The argument includes concerns over the "anonymity" of the IMR reviewer. The IMR determination is authored by an "anonymous" medical professional, eliminating the parties' opportunity to determine whether the decision was procured by fraud, bias or conflict of interest. This limits the basis for appeal to matters about which the parties have no information. Further, the court's right to make a determination on appeal has been stripped by this law, because even if an appeal is granted, the result is a new review in the same, faulty IMR system. It is expected that the Court of Appeal will hear oral argument sometime this summer.
The attorneys at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP make it a priority to stay updated with respect to changes in the law and educate the community about how these changes will impact their right to Workers' Compensation benefits. We will keep you posted on the outcome of these two very important cases as they weave their way through the California court system.
