California’s First District Court of Appeal has certified for publication its decision from mid-January in Zuniga V. WCAB (Interactive Trucking) (WCAB Case No. ADJ2563341, Court of Appeal Case No. A143290; 1/12/2018), holding that Labor Code Section 4610.6(f), which provides that “the independent medical review organization shall keep the names of reviewers confidential” bars any judicial order to release the name of the reviewing physician(s). It also held that this provision does not result in a denial of due process to the injured worker, nor is it unconstitutional.

In this case, the injured worker suffered a 2007 shoulder injury. The applicant underwent multiple surgeries and also received ongoing medical prescriptions to treat the injury. In 2013, the carrier submitted the prescription regimen of 5 medications to utilization review (UR). UR approved only 1 prescription; the other 4 were denied.

The applicant then availed himself of the Independent Medical Review (IMR) process and submitted his appeal of the UR determination to Maximus. Maximus issued its decision, approving one 1 of the 4 prescriptions that had been denied.

Mr. Zuniga then appealed this decision to the WCAB. The judge determined that the denials of the remaining prescriptions were based on plainly erroneous findings of fact, reversed the IMR determination, and remanded the matter back to Maximus for a determination by a different reviewer.

While the second IMR was underway, the applicant filed a petition with the Board to order Maximus to disclose the identities of the reviewers in the first and second IMR evaluations. The applicant argued that it was a denial of due process for him not to know the identities of both reviewers, contending that this information was needed in order to determine whether a different reviewer was, in fact, the author of the forthcoming second IMR decision. He argued that the first 4 of the 5 limited bases for appeal of an IMR decision contained in Labor Code Section 4610.6(h) (that the director acted without authority, the decision was procured by fraud, the reviewer had a material conflict of interest, the decision was the result of the reviewer’s bias, or that there was a plainly erroneous finding of fact) are essentially rendered meaningless without knowledge of the identity of the reviewing physician.

The second IMR determination (which approved 2 of the 4 prescriptions requested and denied earlier) issued prior to the Board hearing on Zuniga’s petition for disclosure of the identity of the reviewing physicians. Zuniga did not appeal the second IMR decision. The WCJ issued a determination on Zuniga’s petition for disclosure of the names of the reviewing physicians, holding that denial of such disclosure was mandated under the provision of Labor Code Section 4610.6(f).

Zuniga appealed the WCJ’s order denying disclosure.  The Court of Appeal accepted the case, despite acknowledgement that Zuniga’s appeal might be moot, on the basis that “the issue is likely to recur between the parties.”

Following review, the Court of Appeal was not persuaded by Zuniga’s arguments, pointing out that the applicant had successfully appealed from the previous IMR determination without knowledge of the reviewer’s identity on the basis that there had been a plainly erroneous finding of fact.

Moreover, the Court pointed to the legislative history of the provision in Labor Code Section 4610.6(f) requiring that the identity of the IMR reviewing physician remain confidential. It noted that the IMR process was intended to replace the time-consuming and expensive “battling QME’s” process that had preceded it, and that confidentiality of the identity of the reviewing physician was specifically put in place to ensure that IMR physicians would render independent and unbiased determinations. The Court also noted that Labor Code Section 4610.6(f) required the disclosure of the qualifications of the reviewing medical professional, so that the parties receiving the determination would be aware of the background of the reviewing physician, if not his or her identity.

The Court pointed out that Article XIV, Section 4 of the California Constitution grants the Legislature “plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of worker’s compensation by appropriate legislation.” (Emphasis in the Court’s decision.) It held Article XIV, Section 4 supersedes the state Constitution’s due process clause, as it relates to the Legislature’s plenary power.

The Court also determined that Zuniga’s federal due process challenge failed as well, relying on Court of Appeal’s decision in Stevens v. WCAB (214 Cal. App.4th 1074), which concluded that the IMR process as it is currently structured amply affords due process to an injured worker.

The Court recently certified this decision for publication. It is unknown whether any appeal will be taken from this decision.

Boehm will continue to keep you posted regarding significant legislative and legal developments.