COA: IMR, Early, On Time, or Late, is Constitutional!
Good news, dear readers!
In case you hadn’t heard, the Court of Appeal, in the case of Stevens v. WCAB, has found California’s IMR process to be constitutional and valid.
In Stevens, a case touched upon a time or two by this most humble of blogs, applicant’s treating physician requested various medications to alleviate her pain stemming from an accepted injury, and also the services of a home health aide for 40 hours per week. The request was denied by UR and the denial was confirmed by internal review. Applicant then requested IMR which was also upheld the original UR denial.
The applicant then turned to the WCAB, but neither the WCJ nor the WCAB were of any help, ruling that there is no jurisdiction to invalidate the UR and IMR decision.
The Court of Appeal also ruled that IMR is constitutional. After an excellent history of California’ workers’ compensation system and the recent reforms, the COA ruled that the Legislature, in its wisdom, put medical necessity determinations in the hands of physicians, and there is no violation of due process when the injured worker can still request review of non-scientific determinations.
Basically, if the doc got the facts wrong, the WCAB can swoop in and order a new IMR; if the doc got the facts right, neither Judges nor Commissioners are in a position to challenge the finding.
The Stevens opinion also discussed the fact that there is no mechanism for enforcing timeliness of IMR, essentially approving the Arrendondo holding. (But, please note the Southard decision, where a split majority held that untimely IMR grants the WCAB authority to review and authorize medical treatment). Stevens reasoned that “[w]e are unconvinced that the lack of a mechanism to enforce time limits renders the IMR process unconstitutional. In the absence of a penalty, consequence, or contrary intent, a time limit is typically considered to be directory, and its violation does not require the invalidation of the action to which the time limit applies.” (Page 26).
The question for practitioners at the Board in the coming months will be whether the COA’s opinion that a blow deadline doesn’t render IMR unconstitutional means that a blow deadline is not authority for the WCAB to take matters into its own hands.
It’s an interesting (but somewhat lengthy) read if you’ve got the time for it, but above are the main take-aways.
What’s next? There are enough interested parties in this case that we can probably expect the Supreme Court to get a knock on its proverbial door soon enough (at times, your humble blogger wonders if the California Supreme Court will eventually overrule the entire workers’ comp system so that it can stop reviewing WC cases), but if the Justices will answer, your humble blogger can’t say.
For now, though, IMR continues to rule, and employers and insurers can continue to reap the benefits therefrom.
Have a great weekend, dear readers!
Please remember, folks, Saturday is Halloween – kids are out even after dark, so drive carefully!