IMR Challenges Communication

Frances Stevens, 46, sustained an injury Oct. 28, 1997, that required a series of surgeries, including the fusion of her first and second metatarsals. State Compensation Insurance Fund provided her a manual wheelchair, but difficulties moving the chair caused her to develop bilateral shoulder problems, according to her case file.

A combination of severe pain and confinement to a wheelchair caused Stevens to become severely depressed. She was declared permanently and totally disabled on Aug. 16, 2013.

Following the declaration of PTD status, Stevens’ physician recommended and prescribed pain and antidepressant medication as well as home health care.

State Fund denied the recommendation of home health care for eight hours a day, four days a week, as well as pain medications on July 25, 2013, and Oct. 17, 2013. Stevens appealed those decisions on Aug. 14, Sept. 19, Oct. 1, Oct. 15, Dec. 9 and Dec. 10, but Maximus did not issue its determination finding the treatments unnecessary until Feb. 20, 2014, according to the petition.

Now the case is being taken to the appellate court, on the grounds that IMR violates the California Constitution, Article XIV, Section 4, which vests with the Legislature authority to enact workers’ compensation laws “that provide substantial justice, without encumbrance” and that these laws be subject to review by a state appellate court.

The petition filed with the First District Court of Appeals avers that a writ of mandate is the only recourse available to Stevens. While Labor Code Section 4610.6(h) allows an injured worker to appeal an IMR decision based on allegations of fraud, conflict of interest, or bias, because the reviewing doctor is anonymous, “the injured worker is not provided any information upon which to make an appeal on any of those grounds.”

“The issue is that since the process is a secretive one, the injured worker has no basis upon which to ever mount an appeal on the grounds cited above,” Stevens' attorney argues in the brief.

“In essence, Labor Code section 4610.6 has rendered petitioner’s WCAB award of future medical care for her devastating and permanently disabling industrial injury meaningless,” the petition says. “Based on these facts, petitioner has no plain, speedy and adequate remedy at the WCAB to enforce the award or seek a ruling on the constitutionality of Labor Code Section 4610.6, or to compel the administrative director and Maximus to render a transparent decision subject to cross-examination and a fair speedy hearing before a WCJ with full appellate rights.”

Will this terminate IMR in California?

I don't know. But the drafters of SB 863 and the IMR provisions were dutifully warned about potential constitutional issues with failing to provide some avenue of judicial review.

There's an old saying in the legal profession - bad cases make bad case law.

This is a bad case. 100% disabled according to both physician opinion and judicial declaration, need for ongoing medical care, and an attorney who knows what he's doing (Stevens' attorney was successful counsel to Wanda Ogilvie, the applicant whose comp claim gave rise to a line of cases addressing how and when an injured worker to rebut the permanent disability rating schedule by showing it didn't fully account for future lost wages caused by the injury).

If any case is going to be successful in challenging IMR this is the case.

I think IMR can be a good thing if it properly disposes of medical treatment requests that are not reasonably evidence based or whatever standard is deemed applicable.

I also believe that there can be no absolutes.

SB 863 made some absolutes. So it is going to be challenged, and likely those absolutes are going to be stricken.

That doesn't mean the death of IMR however, just that some assumptions are changing.

And of course SB 863 proponents are going to argue that system savings are not going to be realized. But that's the gamble. It's not like there wasn't any debate or warning about whether or not those savings in fact were going to be realized, or that the reformation of the system would withstand challenge.

The Stevens case is going to be an emotional debate.

And maybe this is actually going to be a good thing - maybe the threat of ultimate judicial review will cause the parties go start talking again and settling issues rather than perfunctory reliance on a system devoid of rational communication.