10 Apr 2015

California: Medical Records for Independent Medical Review

Defendant, not applicant, has mandatory obligation to forward all relevant medical records to IMR

In Garibay-Jimenez v. Santa Barbara Medical Foundation Clinic, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel rescinded the WCJ’s order denying the applicant’s appeal from an independent medical review (IMR) determination that upheld the utilization review (UR) denial of recommended surgical treatment in the form of left ulnar nerve decompression. The applicant challenged the IMR determination based on the failure of both the UR and IMR physicians to review the reports of the agreed medical examiners who recommended the surgery.

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The WCAB found that the WCJ erroneously concluded that the applicant failed to establish a statutory basis for her appeal because the applicant neglected to provide the agreed medical examiners’ reports in response to the IMR request for medical records. The WCAB found that it was the defendant’s mandatory obligation under Labor Code § 4610.5(l) [LC 4610.5] and 8 Cal. Code Reg. § 9792.10.5 [R 9792.10.5], not the applicant’s, to forward all relevant medical records to IMR. Here, the defendant failed to comply with its obligation. The WCAB made it clear that the applicant has no statutory or regulatory obligation to submit medical records to IMR.

As explained by the WCAB, the defendant’s failure to provide the relevant medical records to the IMR organization constitutes grounds for an appeal of the IMR determination under Labor Code § 4610.6(g) and (h) [LC 4610.6] because, by failing to provide the IMR reviewer with all the material and relevant records, the determination of the IMR organization is in excess of its powers. Given the defendant’s failure to comply with its statutory obligation to provide records in this case, the WCJ’s finding that it would be unfair to require the defendant to pay for another IMR determination was not a valid basis to deny the appeal.

Read the Garibay-Jimenez noteworthy panel decision.*

*CAUTION: This decision has not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy (a “noteworthy panel decision”) because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.