Young: A Swing and a Miss

Monday, April 3, 2017 | 0

Another attack on the constitutionality of independent medical review in California workers’ comp has failed.

Julius Young

A second California Court of Appeal district has now ruled that independent medical review (IMR) is constitutional. That’s the bottom line in Thursday's California Court of Appeal Third Appellate District case of Daniel Ramirez v. WCAB.

In an opinion certified for publication, veteran Justice Cole Blease, joined by Justices Duarte and Renner, finds that IMR does not violate state separation of powers or due process, and does not violate federal procedural due process requirements.

The court renders a result similar to the 2015 holding in the Court of Appeals First District case of Stevens v. WCAB, 241 Cal.App.4th 1074.

In doing so it states that:

“We conclude that the board had no jurisdiction to review a utilization review that was alleged to be defective for failure to follow the medical treatment utilization schedule.”

And it concluded that the Workers' Compensation Appeals Board “had no power to determine whether the utilization review was materially defective.”

They justices do note that under Labor Code 4610.6(h), an IMR can be appealed to the WCAB on limited grounds such as fraud, material conflict of interest, bias or an erroneous finding of fact not subject to expert opinion.

I’m not aware of any statistics on how often a UR determination has been overturned the the WCAB on those grounds. But if a claimant were to prevail under Labor Code 4610.6(h), the remedy would be a second crack at IMR.

In Ramirez, the court finds that a challenge to a UR reviewer’s alleged failure to follow the medical treatment utilization schedule guidelines was limited to “the medical professionals performing the independent medical review.”

Other appellate district panels could still weigh in on the constitutionality of IMR, but with the rulings in Stevens and now Ramirez, a different result seems less likely.

IMR appears here to stay, absent legislative consensus to amend it.

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.