Your humble blogger previously opined that, despite Labor Code section 4062.2(f), which holds that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5” the parties actually could enforce an agreement to submit medical treatment questions to an AME rather than to UR and IMR.

Well, it looks like the WCAB might take the same stance, as expressed in the panel decision in Bertrand v. County of Orange.  Applicant resolved her claim back in 2004, with a stipulation to submit future medical treatment disputes to the AME.  Well, fast forward roughly ten years, and defendant is claiming that all treatment disputes must go to Utilization Review and Independent Medical Review.

The WCJ held the agreement binding, and the defense sought reconsideration.  Treating the petition as one for removal, the WCAB held that “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.  The recent change to IMR as the method of review of medical treatment disputes, as provided in Labor Code section 4610.6, does not supersedes the parties’ stipulation…”

Now, it’s pretty hard to square that with the Labor Code: “the parties may agree to an [AME] at any time, except as to issues subject to [IMR]” on one hand, and “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.”

Let’s take this a step further – if the WCAB is saying that the parties may waive various statutory protections and resolve disputes by agreement, is there any limit on what benefits the parties can waive?

This is an issue that needs some serious, binding authority, but absent a petition for review by the County of Orange, we won’t find it here.