In December 2014, the California Court of Appeal, First Appellate District, Division 1, granted a petition for writ of review in Stevens v. WCAB (Outspoken Entertainment), Case No. A143043.

Applicant’s counsel alleges that the current Independent Medical Review (IMR) system, established under SB863, pursuant to Labor Code Sections 4610 and 4610.6, for adjudicating medical treatment disputes violates the due process rights of the injured worker and is unconstitutional.

Under the IMR system, the physician rendering his or her determination regarding the validity of the Utilization Review decision is anonymous.  Furthermore, the IMR determination “shall be deemed to be the determination of the administrative director and shall be binding on all parties” pursuant to Labor Code Section 4610.6(g).  Labor Code Section 4610.6(h) also provides that “The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence” of one of five limited grounds for appeal:  “(1) that the administrative director [AD] acted without or in excess of  the AD’S powers, (2) the determination of the AD was procured by fraud, (3) the IMR reviewer had a conflict of interest …, (4) the determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, or (5) the determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge … and not a matter that is subject to expert opinion.”

It is contended that the scheme outlined above unconstitutionally deprives the injured worker of fundamental rights consistent with due process, such as the right to cross-examine the IMR physician, the right to judicial review of the final decision, and the right to discovery, including the identity of the IMR physician.

On January 26, 2015, the Court of Appeal invited supplemental briefing by the parties and the amicus curiae on the following issues:  “1. Is the plenary power to enact workers’ compensation statutes vested in the Legislature by the California Constitution limited by the Separation of Powers Clause of the California Constitution?  2. Does the plenary power to enact workers’ compensation statutes vested in the Legislature by the California Constitution effect our analysis in evaluating petitioner’s claims under the California Constitution’s Due Process Clause?”

Defendant (and respondent) in this matter is represented by State Compensation Insurance Fund.  Amicus briefs have been filed by several organizations on both sides of the issue.  The California Applicants’ Attorneys Association and Voters Injured at Work have filed briefs in support of the petitioner/injured worker.  California Workers’ Compensation Institute & Property and Casualty Insurers Association of America and the California Chamber of Commerce have filed briefs in support of the defendant/respondent’s position.

Applicant’s attorney has filed with the Court a request for oral argument.

Boehm & Associates will keep you posted regarding the Court’s decision in this case as well its impact on medical treatment and reimbursement issues.