Under what circumstances can a Maximus Independent Medical Review Determination be appealed?
Under Labor Code 4610.6(h), the grounds for appealing an IMR determination are very limited.
Challenges to the constitutionality of the IMR statute are currently pending, but the odds seem long that California courts will reject the IMR statute altogether.
So court decisions clarifying the basis for a valid appeal under Labor Code 4610.6(h) become important.
Some of the grounds for an appeal are basically non-starters. Proving fraud, material conflict of interest, or identity-group bias is basically impossible where the name of the Maximus reviewer is kept secret.
Labor Code 4610.5(h) lists an action taken “without or in excess of the administrative director’s powers” as a basis for overturning an IMR determination.
Also, Labor Code 4610.6(h)(5) adds the following as a basis to overturn the IMR decision: “the determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.”
A recent WCAB panel, Marissa Gonzalez-Ornelas v. County of Riverside (see link below) may provide some guidance as to how the WCAB will interpret 4610.6(h)(5). The three panel members were Brass, Sweeney and Deputy Commissioner Newman.
The case concerned a treating physician request for Synvisc injections in the knees which had been rejected by UR. The UR denial was appealed to IMR, which upheld the UR denial.
The applicant then appealed the IMR denial under Section 4610.6(h).
This attack on the IMR determination was rejected by the workers’ comp judge, who opined that:
“It seems to the undersigned that the question of whether a medical report contains language to support a specific diagnosis or explain a patient’s response to previous treatment is not a matter of ordinary knowledge, but instead one which requires expert opinion. If this characterization is accurate, the undersigned is not authorized to address this issue.”
The WCAB panel noted that while the IMR doctor claimed that there was no documentation that the worker had failed conservative treatment therapy and no documentation of osteoarthritis that was unresponsive to conservative therapy, those statements were not true.
The treating physician had, in fact, documented those things.
The WCAB panel noted that “expert opinion is not needed in order to determine that the IMR decision in this case is defective.”
Moreover, since the IMR decision referenced the ODG Guidelines on the issue of knee injections, the WCAB panel stated that “It is also within the realm of ordinary knowledge to determine from the face of the IMR decision that the use of the injections is recommended by the ODG for people who suffer from osteoarthritis in their knees, like applicant”.
In support of its decision, the panel referenced language from the Stevens v. WCAB case which spoke glowingly and expansively about the scope of WCAB review of IMR under Labor Code 4610.6(h).
Keep in mind, however, that overturning IMR is not a total win for the worker’s desired treatment.
4610.6(h) merely requires that the DWC assign a new IMR of the treatment, starting a new cycle.
This decision, unless successfully challenged by the defendant, will be a useful tool for skillful counsel to challenge egregious and unjust IMR determinations. The level of effort and analysis required to reach this result may, however, make successful application of the case limited to a relatively small group of cases.
Here is the decision in the WCAB panel Marissa Gonzalez-Ornelas v. County of Riverside: