Diane Garibay-Jimenez (BPD) (ADJ 65552734):
The applicant’s attorney filed an appeal of an IMR decision denying his client surgery on the grounds the IMR reviewer did not see the AME reports. The WCAB granted reconsideration and remanded the matter for a new IMR determination because the defendants failed in their duty to provide all relevant medicals to the IMR reviewer and therefore the Administrative Director decision was in excess of the AD’s powers and therefore a new IMR was required.
This case should result in an increase in IMR appeals.
Please also note the IMR appeal went to a WCJ first and then to the WCAB.
The WCJ denied applicant’s petition, which appealed the decision of the Administrative Director, thereby upholding the Independent Medical Review determination which sustained a Utilization Review denial of recommended surgical treatment in the form of left ulnar nerve decompression.
The WCJ held that the applicant failed to establish a statutory basis for her appeal and that applicant neglected to provide the Agreed Medical Evaluator reports in response to the IMR request for medical records. The WCJ further held that it would be unreasonable to require defendant to pay for an additional IMR determination.
Applicant appealed the IMR determination on January 8, 2015, contending that pursuant to LC § 4610 (h) (1) , that the determination was the result of a plainly erroneous express or implied finding of fact, which mistake of fact as a matter of ordinary knowledge based on the information submitted for review pursuant to section 4610.5, not a matter subject to expert opinion.
The error cited by the applicant was the failure of both the UR and IMR physicians to review the reports of the Agreed Medical Evaluators who recommended the ulnar nerve decompression and post-operative physical therapy.
The WCJ concluded that the applicant’s failure to forward in a timely manner the medical reports prevented the IMR reviewer from considering the AME reports, such that any error on the part of IMR was self-inflicted by the applicant. The WCJ concluded that the error was caused by applicant’s oversight an inadvertence and it would be unreasonable to force defendants to provide another IMR determination.
The WCAB stated that Labor Code § 4610.5 (l) places a mandatory obligation on the employer to forward all relevant medical records to IMR. Further Administrative Director Rule 9792.10 .5 also mandates that IMR organization receive from the claims administrator all reports of the physician relevant to the employer’s current medical condition including reports specifically identified in the request for authorization.
The WCAB went on to state there is no statutory or regulatory obligation placed on the applicant to submit medical records to the IMR organization.
Therefore, defendant’s failure to provide the relevant medical records to the IMR organization constitute grounds for appeal of the IMR determination, under Labor Code § 4610.6 (g) and(h) which provide in (g) The determination of the independent medical review organization shall be deemed to be the determination of the administrative director and shall be binding on the parties; (h) a determination of the administrative director pursuant to this section may be reviewed only by a verified appeal from the medical review determination of the administrative director, filed with the Appeals Board for hearing and served on all interested parties within 30 days of the date of the mailing of the determination to the aggrieved employee or the aggrieved employer. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon clear and convincing evidence of one or more the following grounds of appeal, (1) the administrative director acted without or in excess of the administrative director’s powers.
By failing to provide the IMR reviewer with all the material and relevant medical records, the determination of the IMR organization, and that is the Administrative Director, was enacted without or in excess of its powers. The IMR process can only work if the parties meet their obligations to provide the necessary medical records.
The WCAB granted reconsideration and rescinded the findings. It then returned the matter for a new IMR application. The WCAB further found that the defendant failed to comply with its obligation under Labor Code 4610.5 (l) to provide all relevant medical records to the IMR organization, making the final determination of the independent medical review organization and act without or in excess of the administrative director’s powers.