The Construction of IMR

On October 28, 2015, the California Court of Appeal,  First District, ruled in Francis Stevens v. WCAB (Outspoken Enterprises),  241 Cal. App. 4th 1074 (1st Dist. 2015) that California’s Independent Medical Review (IMR) procedure is constitutional.  In its decision, the court concluded that the California legislature has plenary power over the workers’ compensation system.  In addition, the Court concluded that California’s scheme for evaluating treatment requests is fundamentally fair and affords workers sufficient opportunity to present evidence and be heard.  On November 12, 2015, the First District denied Steven’s Petition for Rehearing.  On Friday, December 4, 2015, the applicants’ attorney filed a petition for review with the California Supreme Court.  In addition, the First District Court of Appeal agreed recently to review Zuniga v. WCAB, a case that also challenges the constitutionality of IMR.  In the absence of review by the California Supreme Court or a contrary ruling by a different Appellate District in another case, however, the Stevens decision must be followed by workers’ compensation judges in California.  The facts of the case are as follows: Stevens, a former magazine editor who is wheelchair bound, requested approval through her primary care physician for an in-home health aide.  The aide was to assist with bathing and dressing, moving about her home, preparing meals, and picking up medications from the pharmacy.  The request was submitted to utilization review, which denied the request.  The applicant then appealed to IMR.  IMR upheld the appeal, noting that while the Medical Treatment Utilization Schedule (MTUS ) recommends home health aides for patients that are homebound on a part-time or intermittent basis, “medical treatment” does not include homemaker services like shopping, cleaning, laundry, assistance with bathing, and using the bathroom when this is the only care needed.  Because no “medical care” was required by Stevens from the in-home health aide, IMR found that the aide was not appropriate under the MTUS for the “homemaker services.”

The WCAB held that it was powerless to review IMR’s determination that “Medical treatment does not include… personal care given by home health aides…when this is the only care needed.”  Upon review, the Court noted that the Workers’ Compensation Appeals Board (“WCAB”) is empowered to consider whether a request for treatment was denied without authority or was based upon a plainly erroneous fact that is not a matter of expert opinion.   [See Labor Code § 4610.6 (h)(1) & (h)(5).]

Insight into the Court’s thinking can be found in the examples provided in the Stevens decision.  With regard to IMR acting without authority, the Court noted that a denial of a particular treatment because the treatment was not permitted by the MTUS was reviewable to determine if the treatment was in fact permitted by the MTUS.

According to the Court, if an IMR decision incorrectly finds that treatment is prohibited by the MTUS, such a decision is made without authority.  That decision is then subject to review by the WCAB.  In the Stevens case, because the WCAB had not addressed this issue, the Court remanded the case to the WCAB to review whether home health services are authorized by the MTUS where the care only involves bathing, dressing, and using the bathroom.

The Stevens court also confirmed, however, that if an IMR decision is subject to review, neither the WCAB nor the appellate court can substitute its own determination of medical appropriateness in place of the IMR determination.  The remedy is to remand the issue to IMR for a new review.  This statement, however, appears to contradict the requirement that the WCAB review an IMR decision to confirm that the MTUS in fact prohibits a treatment.  That process, by its nature, appears to require the WCAB to substitute its own medical opinion in place of the IMR reviewer.  Further clarification from the courts may be necessary.  Ultimately, the WCAB review should be limited to actual language of the MTUS and whether that language allows or prohibits a particular treatment when  the treatment is medically appropriate.  IMR should then decide whether the applicant’s particular circumstances make the treatment appropriate in a given case.

It can be anticipated that applicant attorneys will appeal IMR decisions arguing that an IMR finding incorrectly concludes that treatment is excluded from the MTUS.  Because this avenue of appeal has been opened, it will be critical that IMR decisions clearly identify the provisions of the MTUS prohibiting treatment.  Unfortunately, the Stevens decision blurs the bright line the legislature intended to draw separating judges from medical decisions.  Though IMR decisions supported by the MTUS will likely be upheld, considerable time and expense will be unnecessarily expended confirming decisions that should never have been appealed.

The Court also discussed that the WCAB possesses authority to determine if an IMR decision is based on a plainly erroneous fact that is not a matter of expert opinion.   The court explained, for example, that if treatment was found not suitable because a worker weighed less than the treatment’s  required 140 pounds, but the worker in fact weighed 180 pounds, the decision would be reviewable.  The actual weight of the worker is a fact that is not a matter of expert opinion, and can be reviewed by the WCAB for accuracy.

The “factual” error ground for appeal should create fewer problems than the “without authority” ground.  The determination of facts not requiring expert opinion is a primary role of workers’ compensation judges.  As such, the determination of the true nature of relevant facts pertinent to a medical determination should appropriately be within the purview of a WCJ.  The number of situations where the determination of facts is a prerequisite to an IMR determination should be relatively rare.  As such, this ground for appeal of an IMR decision should not create the cost, expense, and delay issues that the other ground for appeal threatens.

What is clear is that further clarification from the courts will be necessary to determine the extent of the WCAB’s role in determining whether treatment is or is not included in the MTUS.