Grinberg: COA: Keeping Identity of IMR Reviewers Secret Is Constitutional

Tuesday, February 6, 2018 | 0

Are you ready for a post on independent medical review? This is a good one, because the Court of Appeal has, once again, upheld the IMR process as constitutional. Not only that, the case of Zuniga v. WCAB was recently ordered published.

The facts aren’t particularly confusing and the ruling is pretty clear, but here’s a short summary.

Zuniga challenged an IMR determination as based on erroneous factual findings. After prevailing on the challenge, the workers' compensation judge ordered a new IMR evaluation by a different reviewer. However, the identity of the first reviewer (and the second reviewer) were kept secret.

Zuniga challenged the secrecy involved as a violation of due process, arguing that if he could not know the identity of the IMR reviewers, he could not, in fact, tell if the order of a new reviewer was being obeyed.

Basically, applicant was challenging the constitutionality of the IMR process as to keeping the identity of the IMR reviewers secret. However, like every challenge to IMR to date, the Court of Appeal responded with a (now published) decision rejecting applicant’s arguments as to the constitutionality of IMR.

The COA reasoned that the Legislature's understanding that “confidentiality helps to ensure that IMR reviewers are independent and unbiased is reflected in an analysis of a proposed, but not adopted, change to the IMR process.” 

Explaining further, the COA opinion cited Article XIV, Section 4 of the California Constitution, that the Legislature is unlimited by the other provisions to create and enforce a workers’ compensation system. Thus, the due process clause of the Constitution does not limit the workers’ comp system (a fact that defendants, sadly, are all too familiar with).

The federal due process claim fails as well, as per the COA, because there is ample notice and opportunity to be heard, as per Stevens vs. WCAB.

So IMR survives another challenge, and the defense community can rejoice as the utilization review/IMR process is probably the most effective cost containment win from SB 863.

That being said, I have a hard time following the logic that leads to this result (as desirable of a result as this might be). If the next reform found that the identity of judges should be kept secret, would that be a due process violation? After all, the parties can submit their arguments through trial briefs, and the witness testimony can be video-recorded and provided to the judge for review, and there will be no need for hearings because judges can work remotely from the secrecy of their home offices. Right?

Again, as desirable as this result is for the defense community (the IMR, not the secret judges — that’s just crazy talk), somehow this doesn’t pass the logic test on due process grounds. Unless the party can independently confirm enforcement of the order or the rules involves (such as those requiring re-review by a new reviewer), how is compliance with the law to be confirmed?

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.