In this case the applicant challenged the IMR determination based on arguments that the IMR determination was the result of plainly erroneous express findings of fact, biased and unconstitutional
The board held the applicant failed to meet his burden of proof. In dealing with the issue of applicant’s challenge based on a plainly erroneous express finding of fact the WCAB found the applicant failed to show clear and convincing evidence that the determination was the result of a plainly erroneous express finding of fact.
Willis v. State of California (BPD) (2014 Cal. Wrk. Comp. P.D. LEXIS 210):
The WCJ denied applicant’s appeal from of IMR determination.
Applicant filed a petition for reconsideration claiming that the IMR determination was the result of a plainly erroneous express findings of fact was bias and made a constitutional challenge to the statute.
The WCAB found the applicant did not show by clear and convincing evidence that the IMR determination was the result of plainly erroneous express finding of fact.
The WCAB also indicated that no authority to address applicant’s constitutional challenge to LC § 4610.6 (h) (5).
Despite applicant’s assertion there was evidence of bias WCAB found that there was no evidence of bias by the IMR reviewer based on applicant’s non-industrial cerebral palsy. The WCAB further found that the IMR reviewer’s use of chronic pain guidelines appear appropriate, but even if improper guidelines hand be used it would not necessarily have any bearing on applicants appeal of the IMR determination, as applicable treatment guidelines should be determined by medical expert.