And a good day to you dear readers!

Your humble blogger is back and more hungry than ever for the fair and proper results that seem to escape our files.

I bring you the case of Payne v. Federal Express, a relatively recent panel decision.

Applicant had entered into a C&R agreement with defendant, presumably with open future medical care, back in 2003.  One of the provisions of this C&R was that the parties’ AME would resolve all medical necessity disputes.

As is to be expected, a dispute arose about a particular recommended course of treatment.  Defendant submitted it to UR and then applicant requested IMR, both of which denied the reasonableness of the RFA (this was a weight loss program).  After running up defendant’s bills with the UR/IMR process, applicant then went to the AME to weigh in on the reasonableness of the treatment.  The AME concurred that the weight loss program was reasonable and necessary.

When applicant sought to set this matter for trial, defendant objected on the basis that the WCAB had no jurisdiction to resolve this issue as it was a dispute over medical care.

The WCJ concurred with defendant – because applicant had appealed the UR determination to IMR, she was now bound by IMR.  The WCAB reversed.  Citing Bertrand, the WCAB concluded that subsequent changes in law do not relieve parties of their respective contractual obligations.  The matter was remanded down to the trial level.

Unfortunately, what the opinion is lacking, much like the opinion in Bertrand, is a discussion of why Labor Code section 4062.2(f) does not control in this situation.  Specifically, the Labor Code holds that “[t]he parties may agree to an [AME] at any time, except as to issues subject to the independent medical review process …”

To your humble blogger, who is not a commissioner or a Court of Appeals Judge, but just a humble blogger, this subsection is a crystal-clear demonstration of legislative intent – only UR/IMR is to address issues of medical necessity.

Let’s take this reasoning to its natural conclusion – if the AME had retired and declined to respond to requests for comment, what would the parties have done?  Are the parties now obligated to find some other AME, or are they bound to the UR/IMR process?  Would the law invalidate any agreement to use a new AME?

Furthermore, if applicant’s position is that UR/IMR does not apply and that the AME should determine all medical necessity questions, by what right does the applicant impose costs on the defendant through the IMR process?  Is this not frivolous?  Should applicant not be ordered to pay back the costs of IMR so brazenly incurred?

The position that applicant is entitled to request IMR and, yet, is not bound by IMR’s determinations seems contradictory and unsustainable.

If a section of the Labor Code can be invalidated by “contracting” around it, by that rationale, could parties not simply contract out of the workers’ compensation system altogether?  The WCAB has shown exactly zero hesitation when the facts and the law support invalidating an independent contractor agreement and finding an employment relationship, regardless of the actual agreement between the parties – why should the WCAB hesitate to invalidate a contract agreement as to addressing future medical care in this case?

The bright side of this is, of course, that there are relatively few of these cases out there.  Accordingly, we can hope to see fewer and fewer of such disputes go south for the defense community in the years to come.