Thursday, June 19, 2014

The Opera Ain't Over

The first appellate decision in what likely will be ongoing challenges to the California Independent Medical Review process introduced by SB 863 was a summary denial.

Frances Stevens had worked as a magazine editor before suffering an admitted industrial injury to her feet in October, 1997. She underwent a series of surgeries, but her condition did not improve. Stevens wound up dependent on a wheelchair for mobility, and she consequently became severely depressed.

The Workers' Compensation Judge found Stevens to be permanently and totally disabled last August.

Thereafter, Stevens' treating doctor issued her prescriptions for home health care services and a variety of pain medications. State Compensation Insurance Fund, carrier on the case, denied the treatment request.

The matter was sent to IMR and Maximus Federal Services, the contractor which provides IMR services in California, upheld the SCIF's decision in February. 

Stevens then file a petition for writ of review and writ of mandate asking the California 1st District Court of Appeal to find that IMR denies injured workers their due process rights by prohibiting meaningful judicial review of decisions.

A final IMR decision can be appealed only for an obvious mistake of fact or allegations of bias, fraud or conflict of interest. Stevens argued that the anonymity of the reviewing physician renders it impossible to substantiate any such allegations. Additionally, Stevens argued, if an IMR decision is set aside, the worker is not automatically entitled to the recommended treatment but has to go through the process again.

The California Division of Workers’ Compensation countered that Stevens lacked standing to pursue writ relief since she had not exhausted her administrative remedies. The DWC noted that Stevens could still appeal the IMR decision and, if unsatisfied with the outcome of the appeal, petition the WCAB for reconsideration. Until the WCAB rules on the petition for recon, there is no final order subject to a writ of review, the DWC said.

SCIF asserted a similar argument, and moved for dismissal of the writ petition.

Before other interested organizations were allowed to file amicus briefs the 1st DCA summarily denied Steven's petition.

It's important to note that the court is not ruling on any merits of the case, and since there was no opinion filed with the dismissal it's impossible to know what the court was thinking, though it would seem, particularly in light of respondents' briefs, that the court determined the matter simply wasn't "ripe" for their review.

Since there was no actual decision from the Workers' Compensation Appeals Board denying review of the IMR decision, Stevens may have to go through the entire process to get to the WCAB level and then be formally rejected by the WCAB, and then the case can be brought back up to the 1st DCA for the court to review its merits and the constitutional arguments.

In the meantime other challenges to IMR and other SB 863 processes are making next week's California Applicant Attorneys Association annual summer convention of particular interest.

CAAA President Jim Butler told WorkCompCentral Wednesday that the group thinks the IMR process "should be workable," but "in its current incarnation there are more questions than answers."

The translation is that the process will continue to come under attack unless there's some capitulation on the review standards and process from the employer/carrier side.

And my guess is that's not likely in the near term.

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