Home > Uncategorized > Absent Dubon, WCAB Can Only Grant New IMR Decision

Absent Dubon, WCAB Can Only Grant New IMR Decision

Hello, my beloved readers!  As you return from your Labor Day weekend, relaxed, refreshed, and ready to take the Workers’ Compensation system by storm, your humble blogger greets you with news of a recent panel decision REJECTING jurisdiction over IMR.

I’ll have you know, first and foremost, that after last week’s post discussing the statutory requirement that IMR appeals be verified, your humble blogger was beset by a mob of devoted readers demanding more posts addressing the IMR appeal process.  Phone calls were received, e-mails were read, and borderline threatening messages were communicated.  Well, who am I to say no to such passionate voices?

As you will recall, Dubon was an en banc opinion in which the WCAB ruled that applicants can use expedited hearings to challenge the validity of the UR process, and thereby escape IMR.  The test appeared to be whether the UR decision suffers from a material procedural defect that undermines the integrity of the UR decision.

In the case of Stevens v. Outspoken Enterprises, Inc., applicant sought to challenge the IMR denial of a treatment request rejected by the Utilization Review process.  However, for reasons not apparent from the panel opinion itself, it appears that no Dubon challenge was mounted (as the WCJ noted in her report: “there have been no allegations of material procedural defect or untimeliness in the UR decision”).  So, the WCAB was left with a challenge to the IMR decision based on (1) the fact that IMR is unconstitutional; and (2) the IMR determination is deficient and does not constitute substantial evidence regarding medical necessity.

The WCAB’s response was to tell applicant that he was shopping for a hotdog in a hardware store.

The WCAB has no authority to declare statutes unconstitutional or to overturn legislation.  Additionally, the legislature has allowed for a very narrow few reasons to overturn an IMR decision, and the exhaustive list of those reasons is provided in Labor Code section 4610.6(h):

  1. The administrative director acted without or in excess of the AD’s powers;
  2. The determination of the AD was procured by fraud;
  3. The IMR reviewer was subject to a material conflict of interest;
  4. The determination was the result of bias on the basis of a series of protected classes; or
  5. The determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

And, here’s the best part: even if you succeed, at the end of the yellow brick road is what you’ve had all along: another IMR!  As goes the panel opinion: “the remedy provided for any successful appeal of an IMR pursuant to section 4610.6(h) is limited by section 4610.6(i) to the conduct of another IMR” and something tells your humble blogger that more IMR is not what any applicant is looking for.

So, why didn’t the applicant go full Dubon on this case?

Never Go Full Dubon

Your humble blogger can only speculate.  In speaking with applicant’s attorneys here and there, it appears that the general policy is to always file an expedited hearing on a UR denial and make the defendant waste funds on its defense.  The familiar logic of scorched Earth appears to be that, eventually, defendants will prefer to pay for the medical treatment rather than to pay to defend it, and that today’s bottom line will trump tomorrow’s encouragement of frivolous claims.

My regular readers know how I feel about paying the Dane’s Geld, and so I can’t help but applaud the defendant in this case for its staunch defense of the IMR ruling.  Well done!

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  1. Jake Jacobsmeyer
    September 3rd, 2014 at 17:41 | #1

    The reason the AA took this route is rooted in the denial of hearing in his prior Petition for Writ of Mandate in the Court of Appeal. the AA had filed to have IMR declared unconstitutional however his petition was dismissed. Some believe the dismissal was on the basis the request was premature. The DWC had argued in that case that there was no final IMR and no appeal. It argued the applicant had not exhausted her administrative remedies in jumping directly to the appellate level.
    In order to present the issue of constitutionality of IMR to the appellate courts, therefore the AA decided to go through the process of appealing the adverse IMR to the WCAB, knowing full well they will reject the appeal since the WCAB, as you noted, has no authority to resolve constitutional issues. The denial of his Petition for Reconsideration is a prerequisite to his raising this issue again at the Court of Appeal. The WCAB response was certainly anticipated and now AA can raise his argument on the merits at the appellate level. I do not give AA (who is an excellent practitioner) much of a chance on this issue but he is certainly dogged in his pursuit of it.

    • Gregory Grinberg
      September 3rd, 2014 at 23:46 | #2

      Thanks for the comment, Jake. I agree with you – the end game is not a new IMR but an appellate-level attack on the IMR process. That being said, proper verification would have expedited the exhaustion of administrative remedies, and the fate of so many hard hours legislating and bargaining would be revealed to us all the sooner.

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