02 Jun 2017

Challenging the Legality of an IMR Decision: The Final Chapter in Stevens

Does the WCAB’s interpretation of the Court of Appeal's language open up the possibility of successful appeals of IMR decisions in the future?

In Stevens v. Outspoken Enterprises, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, on remittitur from the Court of Appeal, rescinded the WCJ’s finding that the Administrative Director did not exceed her authority when she adopted an independent medical review (IMR) determination and returned the matter to the trial level for further proceedings.

The WCAB concluded that:

1. The IMR determination upholding the utilization review denial of the applicant’s request for a home health aide was “adopted without authority” by the Administrative Director because a portion of the 2009 Medical Treatment Utilization Schedule, Chronic Pain Medical Treatment Guideline (2009 Guideline), provided that housekeeping and personal care services are not forms of medical treatment, and this provision is contrary to longstanding workers’ compensation law which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury;

2. The 2009 Guideline is unlawful and invalid since it fails to address medical treatment in the form of personal home care services sought by the applicant; and

3. Because the IMR determination in this case relied on a guideline that was invalid, and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment pursuant to Labor Code §§ 4604.5(a) and 4610.5(b)(2) and 8 Cal. Code Reg. § 9792.21.1(d)(2), the Administrative Director exceeded her authority when she adopted the IMR determination in this case.

Although the WCAB recognized that the 2009 Guideline has been revised since the time the Court of Appeal issued its decision in this matter [see Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal. App. 4th 1074, 80 Cal. Comp. Cases 1262], and the current guideline includes requirements that address the need for personal home health care services, the scope of the WCAB’s determination was limited to the present record and the 2009 Guideline because it was the version that was applied in the proceedings below and reviewed by the Court of Appeal.

Commentary:

Recently, the Workers’ Compensation Appeals Board (WCAB) issued its Opinion on Decision After Remittitur in the Stevens v. Outspoken Enterprises, Inc.; State Compensation Insurance Fund case. Stevens is most recognized for the Court of Appeal’s decision that found the State’s Independent Medical Review (IMR) process passes Constitutional muster. In addition to addressing the Constitutional issues, the Court of Appeal also addressed those circumstances where an employee might be able to challenge the legality of an IMR decision. There can be no question, the silver lining in the Court of Appeal’s decision from the employee’s perspective was that the Court broadly defined what might be considered a violation of Labor Code section 4610.6(h)(1). Ultimately, the Court remanded the matter back to the WCAB so that the WCAB could consider whether the employee’s request for housekeeping and personal care services had been improperly denied.

In the panel decision after remand, a panel of WCAB commissioners concluded that the IMR determination upholding the denial of the treatment was “adopted without authority” to the extent that the applicable 2009 Medical Treatment Utilization Schedule (MTUS) guideline indicated that these types of services did not constitute “medical treatment”. Specifically, it was found that this MTUS conflicted with long existing case law going all the way back to 1972 that recognized these services as medical treatment. This decision was made despite the fact that there was no dispute that the 2009 MTUS relied upon by the IMR determination was the applicable MTUS and that it directly applied to the treatment being requested by the treating physician.

The question this panel case raises is what exactly are the circumstances in which it will be determined that the Administrative Director acted in excess of his authority when adopting an IMR determination (Labor Code section 4610.6(h)(1))? Specifically, the issue raised is whether this panel was correct in invalidating an IMR determination where there was an applicable MTUS but where that MTUS conflicted with long existing case law?

Not addressed by the panel was Labor Code 4600(b). In 2004, Labor Code 4600(b) was amended so that it specifically stated “notwithstanding any other law”, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of the injury means treatment that is based upon the guidelines adopted by the Administrative Director pursuant to Labor Code Section 5307.27 (in other words, the MTUS). In short, the MTUS determines what constitutes reasonable medical treatment in the workers’ compensation process.

Moreover, California Code of Regulations section 9792.21(c) provides that the recommended guidelines set forth in the MTUS are presumptively correct on the issue of extent and scope of medical treatment.

Finally, pursuant to Labor Code section 4610.6(h), whether the IMR decision cites to the MTUS or not, the IMR determination itself is presumptively correct and shall only be set aside upon proof of clear and convincing proof that one of the five grounds specified by Labor Code section 4610.6(h) has been violated.

Accordingly, where the MTUS concluded that home health care services did not constitute medical treatment, the MTUS should have been considered “presumptively correct”. Where the IMR determination relied on the MTUS, as it did in Stevens, that determination should have been considered “presumptively correct”. Finally, where the only “law” that could be used to discredit the MTUS in this case constituted four cases from 1972, 1981, 1984 and 2007, it would appear that Labor Code 4600(b)’s mandate that the MTUS shall be valid “notwithstanding any other law” would preclude the commissioners from doing exactly what they did in this case.

It is not entirely clear why the panel in Stevens did not fully consider these sections.

In conclusion, the panel decision in Stevens can certainly be interpreted as an expansion of the grounds upon which to challenge an IMR determination. However, this decision can also be interpreted as an attempt to provide a “meaningful review” of the IMR determination as described by the Court of Appeal. In the future, it will be interesting to see whether the WCAB continues to broadly define those circumstances in which the Administrator Director exceeds his authority or whether it will instead strictly follow the applicable statutes and simply deny the IMR appeal.

Read the Stevens noteworthy panel decision.