Scarpa: IMR Remains Untouched by Attacks on Constitutionality

Tuesday, September 26, 2017 | 1

As if the ushering in of independent medical review under SB 863 had not raised enough questions and litigation, still more concerns regarding independent medical review were highlighted in the case of Ramirez v. WCAB (2017).

Lisa Scarpa

To date, Ramirez marks the third challenge to the constitutionality of IMR as a means of dispute resolution, yet IMR appears to remain unscathed among the Courts of Appeal (see, Stevens v. WCAB (2015) and Margaris v. WCAB (2016), discussing constitutional concerns associated with limited means to resolve disputed IMR decisions).

While judges and the WCAB once possessed the authority to determine the medical necessity of a treatment recommendation, such determinations are now decided by qualified medical professionals only. Pursuant to Labor Code §4610.6(i), a dispute involving an IMR decision must be reviewed and decided by a different IMR physician and, in no event, shall a non-medical professional (e.g. a judge, the board, higher court) make a determination of medical necessity contrary to a determination of an IMR organization.

As such, the board has limited authority to rule on IMR decisions and may review only the same for non-substantive issues.

Daniel Ramirez (petitioner) sustained an industrial injury to his lower leg and ankle. The claim was settled by stipulations with a provision for future medical care, including 12 to 24 sessions of acupuncture through April 17, 2014.

After that date, petitioner was prescribed additional sessions of acupuncture, as he had missed several days of work, and acupuncture decreased his pain and “allowed him to be more functional.” Utilization review denied the request in light of the fact that such treatment is recommended for up to 12 sessions and petitioner had already undergone the maximum number of sessions.

Petitioner then appealed the UR denial through IMR. IMR denied the requested treatment because applicant was approved for 24 acupuncture treatments over the past year and failed to demonstrate objective functional improvement. Subsequently, petitioner appealed the IMR determination to the board.

Petitioner’s appeal essentially proffered two main arguments: 1) the IMR decision denying treatment should be reviewed because the underlying UR was determined using an improper standard; and 2) IMR is unconstitutional at both the state and federal level.

However, petitioner later decided he preferred to assert only the constitutional issues and, in turn, the appeal was taken off calendar at the respondents’ request, since the board did not have the authority to rule on the constitutional issues in question.

At that time, petitioner filed a petition for removal or reconsideration of the order taking the matter off calendar. The board dismissed the petition for reconsideration because it was not based on a final order as required by LC Sec. 5900, but rather the order taking the appeal off calendar.

Additionally, the board found the petition for removal should be denied for lack of substantial prejudice or irreparable harm but ultimately granted removal because the petition raised only constitutional issues beyond the board’s authority. Petitioner then filed a petition for writ of review with the 3rd District Court of Appeal, which was granted.

On review, the appellate court found petitioner had no basis to appeal the UR decision because the determination hinged on whether the treatment requested was medically necessary and petitioner’s constitutional rights were not violated by the IMR process.

On June 14, 2017, the California Supreme Court denied the petition for review, thereby upholding the 3rd District Court of Appeal’s decision finding that L.C. §4610.6 did not violate the separation of powers and due process provisions in connection with the state and federal Constitutions.

With respect to the California Constitution, the court relied on Article XIV, section 4 and the holding of Stevens, to conclude the IMR process set forth in L.C. §4610.6(i) does not violate the separation of powers clause because the Legislature is vested with “plenary power, unlimited by any provision of [the California] Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation.”

Further, IMR does not violate the due process clause because applicant may seek appellate review of a decision issued by the board, when appropriate, under L.C. §4610.6(h).

In response to petitioner’s argument that IMR violates federal procedural due process because it “strips him of his right to a substantive appeal[,]” the court found no due process violation because petitioner was not deprived of a property or liberty interest without being afforded sufficient notice and opportunity to be heard.

The court relied further on Stevens to emphasize that, assuming an applicant’s interest in obtaining medical services does amount to a legitimate interest, applicant is provided ample due process by both the UR and IMR processes (Cal. Consumer Health Care Council Inc. v. Dept. of Managed Health Care (2008)). 

The court also emphasized that IMR is merely one part of the process afforded to workers’ compensation applicants who request treatment and, therefore, constitutes sufficient due process protections.

In light of the judicial trend and statutory intent behind IMR, it appears to be enacted and applied with the best intentions for swift and appropriate medical treatment to injured workers. However, this atmosphere also suggests that the Ramirez case will likely not be the last challenge to IMR.

Though the IMR process is still fairly new, the concerns raised by applicants' attorneys should be taken with a grain of salt. After all, would you prefer your medical treatment be decided by a trained medical professional, or a lawyer?

Lisa Scarpa is an associate attorney in workers' compensation defense firm Stander Reubens Thomas Kinsey's San Diego office. This column was reprinted with permission from the firm's client newsletter.