It has been over a decade since Utilization Review and Independent Medical Review were enacted as part of the California workers compensation system. I meet many injured workers who have no clue. What UR and IMR effectively do is remove medical treatment disputes from WCAB jurisdiction. The procedures for judicial review were also modified. Now the WCAB can only review treatment issues in very specific instances, for example when Utilization Review is untimely. The legislative intent was to reduce the judicial burden of expedited trials over medical disputes. However, most of the sacrifices doled out in the legislation fell on the injured worker.
Labor Code Section 4610.6 codifies the process of Independent Medical Review (IMR) which provides oversight of Utilization Review decisions. IMR provides a format to overturn a UR decision denying or modifying treatment, but I find it more of a window dressing or a means to validate the denial of benefits. I say this because each insurance company contracts directly with entities that provide Utilization Review. In other words, the UR doctors are working for and at the request of the insurance company. If the reviewer is too liberal, the reviewer is no longer a part of the UR process for a particular insurance carrier. So a prudent insurance carrier can significantly reduce it’s costs by hiring stingy reviewers who deny medical treatment.
Litigation to hold UR reviewers liable for malpractice, for example by denying medication that leads to significant complications upon withdrawal, has unfortunately stalled in an unfavorable position. At this point IMR seems to be immune to further litigation regarding its merits as the Appeals Court has found the IMR process constitutional.
There are procedures to appeal an IMR decision at the WCAB. Pursuant to Labor Code Section 4610.6 a verified appeal can be filed with the WCAB within 30 days of the IMR mailing based upon clear and convincing evidence of one or more of the following grounds for appeal:(1) The administrative director acted without or in excess of the administrative director’s powers.
(2) The determination of the administrative director was procured by fraud.
(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.
(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.
In Jocelyn Bowen vs. County of San Berdardino (ADJ156419 ) the WCAB, over the objection from the Administrative Director, found that an IMR Final Determination was defective because it was based upon a plainly erroneous fact that was not a matter of expert opinion. The attorney for the injured worker submitted several medical reports that were ignored by the IMR reviewer in upholding a UR denial of medication. The WCAB reasoned that the IMR reviewer is obligated to review the entire medical record and cannot pick and choose which documents to include. So if the insurance carrier doesn’t send an adequate medical record to IMR, that is grounds for an appeal. However, I don’t know what good that will do the injured worker. The IMR appeal was filed in 2016 based upon medical reports from 2015. The WCAB decision finally issued in 2019, which means it took four years of litigation to get the insurance carrier to approve a prescription for Norco. This would not happen if the WCAB still had jurisdiction over medical treatment.
If you are fortunate enough to win an appeal of an IMR failure at the WCAB, the matter is simply sent back to the Administrative Directors office for assignment to a new IMR reviewer. In no event shall a workers' compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.
UR/IMR is here to stay. Let us hope we can say the same for Applicant Attorneys.