Court of Appeal to Hear Another IMR Constitutional Challenge


Sacramento, CA ( - Daniel Ramirez filed a workers' compensation claim against the State of California, Department of Health Care Services, that resolved in 2011 by way of stipulations with a future medical care. 

In July 2014 the State Fund, received a request for authorization from his primary treating doctor, Natalya Shtutman M.D., for 12 sessions of acupuncture. U.R timely denied the treatment, and Ramirez requested an IMR which upheld the denial of treatment. Ramirez alleges that the IMR reviewer found that the primary treater documented functional improvement following prior · acupuncture. However, the IMR reviewer denied treatment by opining that the primary treater' continued reporting of functional improvement was not credible,

Applicant filed an appeal of the IMR determination with the WCAB challenging the IMR on substantive grounds, and also for an order of the WCAB disclosing the identity of the IMR doctor, so that he could conduct discovery on whether the IMR doctor was biased. The WCJ declined jurisdiction over these issues. Petitioner filed a Petition for Reconsideration and/or Removal of the order taking applicant's appeal off calendar. He argued that reconsideration was proper because the order taking the matter off calendar was an effective dismissal of the appeal. 

The WCAB issued its opinion and orders which denied reconsideration, but granted removal so as to amend the WCJ's order to an actual dismissal of applicant's appeal. The WCAB did not substantively address the issues raised. Instead, the WCAB was primarily concerned with providing a final order from which a petition for writ of review could follow.

The petition for writ of review was filed in the 3rd District Court of Appeal in February, and indeed the Court issued a writ on May 7, 2015. Ultimately the case of Ramirez v The State of California Department of Health Care Services will be argued and heard by the 3rd District.

The applicant argues there was lack of merit of the UR/IMR determination. He argues that the "acupuncture MTUS is found in 8 Cal.Code.Regs. section 9792.24.1, which provides for the continuation of acupuncture if functional improvement is documented. Petitioner clearly documented functional improvement with acupuncture. Instead of referring to the acupuncture MTUS, State Fund improperly applied the American College of Occupational and Environmental Medicine ("ACOEM") Guidelines 2nd edition, which is not adopted or incorporated for purposes of approving acupuncture. State Fund quoted sections of the ACOEM, which state that "invasive techniques (e.g. needle acupuncture) ... have no proven value." Id. That position is completely inapposite to the actual MTUS guidelines for acupuncture. Compare with 8 Cal.Code.Regs. section 9792.24.1. State Fund was required to use the MTUS. Section 4610(c). State Fund did not use the MTUS." 

However the argument on the merits of the determination is not good cause for an appeal to the WCAB. Thus, Ramirez challenges the law on constitutional grounds. "The constitutional question here is whether the legislature had plenary power to remove jurisdiction over medical treatment disputes from the WCAB and assign that jurisdiction to an independent agency contracted through the Administrative Director." 

Ramirez claims it does. "Section 4610.6(i) violates California Constitution, article XIV, section 4, which expressly forbids the Legislature from using its plenary power to "impair or render ineffectual in any measure the creation and existence of the industrial accident commission[.]" This is a separation of powers violation. As stated by the Supreme Court: The standard for assessing whether the Legislature has overstepped its authority and thereby violated the separation of powers principle has been summarized as follows. "[The] legislature may put reasonable restrictions upon constitutional functions of the courts . provided they do not defeat or materially impair the exercise of those functions." Hustedt v. Workers' Comp. Appeals Bd., 30 Cal. 3d 329, 338."

Ramirez alerts the Court that this constitutional issue is pending elsewhere. "Petitioner would note that the constitutional issues raised in this petition are on review in the 1st Appellate District, Stevens v. W. C.A.B., Case No. A143043. Given the scope and effect that the ruling would have on the workers' compensation system, it may be prudent for multiple courts to address the subject." 

Thus, the constitutionality of IMR is now called into question in two districts of the Court of Appeal and will be decided in the coming months. Stevens is more favorable to applicants since the 1st District Court of Appeal is the most liberal, and the Stevens case has the most passionate facts. The 3rd District is located in Sacramento and Its jurisdiction consists of twenty three counties many of which are conservative. Four of the sitting associate justices were appointed by Governor Schwartzenegger. Should the 3rd District in Ramirez rule differently than the 1st District in Stevens, a quagmire would be created that would trigger the intervention by the Supreme Court. Thus, for the defense, the Ramirez appeal is strategically a gift that gives it a foot in the door of a more conservative court.Read More...


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