Constitutionality of California’s IMR Procedure Not a ‘Slam Dunk’

Sacramento, CA (WorkersCompensation.com) - On March 20, California’s Third District Court of appeals heard oral arguments in the case of Ramirez v. WCAB. The case involved a constitutional challenge to California’s Independent Medical Review (IMR) procedure. (A more detailed review of the constitutionality of the IMR procedure can be found here). Less than 10 days later, the court issued its decision upholding the procedure’s constitutionality on March 29. 

There were a couple of procedural arguments involving the joinder of a necessary party and waiver of arguments on appeal that the court dealt with quickly in its decision. The court held that there were no missing necessary parties, and that all the arguments had been properly reserved for appeal. The decision then addressed the more substantive issues of law.

Ellen Sims Langille, General Counsel for the California Workers’ Compensation Institute, a research group that analyses issues and trends surrounding California workers’ compensation matters, attended the oral arguments and offered some observations in an email to WorkersCompensation.com.  

She said that the attorney for the applicant, Greg Gomez, began by arguing “that UR [Utilization Review] was improper because the UR physician skipped past the MTUS [Medical Treatment Utilization Schedule] Guidelines for acupuncture and went straight to ACOEM [American College of Occupational and Environmental Medicine] (which is allegedly more restrictive, and thus the treatment was incorrectly denied),” Langille said. Because of this action, Gomez argued, the Workers’ Compensation Appeals Board (Board) should have the right to review the IMR. In its decision, the court flatly rejected that argument saying that the statute did not support it. Section 4610.6(h) of the California Code states that the only time the Board has jurisdiction to review the IMR are under the following circumstances:

(1) the administrative director acted without or in excess of his or her powers, (2) the administrative director’s determination was procured by fraud, (3) the independent medical review had a material conflict of interest, (4) the determination was the result of bias, or (5) the determination was the result of an erroneous finding of fact not subject to expert opinion.

None of these circumstances were present in this case. 

Langille then said that Gomez “posited that the IMR appeal is a false promise because applicant can only appeal on limited grounds — and since the reviewers are anonymous there’s no way to for applicant to prove any of the listed grounds.” He made this argument as part of a larger denial of due process claim, stating that his inability to cross examine the medical review doctors denied him his right to medical treatment. The court’s opinion was skeptical that a property right existed in the right to medical treatment, but even if such a right did exist, “[I]njured workers requesting treatment under the workers’ compensation system are given detailed explanations of the reasons for a denial or modification of their request, and they are given multiple opportunities to submit evidence and challenge those decisions.” Therefore, the court held “A party has no right to cross-examine such a decision maker.”

The holding of the Ramirez case was not surprising given that virtually the same arguments had already been rejected by two other California courts of appeals. However, prior to the decision being issued, Langille borrowed a March Madness metaphor and opined that “the score tipped in favor of the defense, but it's definitely not a slam-dunk like I've seen in the past.”

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