SAN FRANCISCO – Workers' compensation experts say the Independent Medical Review procedure recently deemed constitutional by a California Court of Appeal harms both workers and employers.
“Attorneys for people hurt at work were hoping that the appellate courts would interpret the California constitution - which requires a complete system of compensation and medical treatment and the right to see a judge - they were hoping that the courts would say that the IMR were not consistent with the constitutional mandate,” Melissa Brown, director of legal clinics at the University of the Pacific, told the Northern California Record.
California has a system of independent medical review that settles disputes through a review process rather than through the court system. Every request for medical treatment must be approved as medically necessary via utilization review. If a treatment is denied based on the utilization review, a worker can request an independent medical review paid for by employers.
“It’s a unique system that was established as another hurdle against injured workers from obtaining benefits,” Jon Gelman, attorney and co-author on a national treatise on workers' compensation told the Northern California Record.
“The irony is that it hurts everyone. It hurts the injured worker because it delays medical care, it hurts employers because it takes the worker out of the market…it hurts the insurance companies because it just slows the process down for them to process claims. And I’m not sure in the long run it even saves money,” Gelman said.
Francis Stevens, a magazine editor who uses a wheelchair, brought the case before the court after both a utilization review and IMR denied her request for an in-home health aide to assist with tasks of daily living and picking up medications. Stevens brought suit against the Workers Compensation Appeals board.
The Court of Appeal for the 1st District considered the case and ruled that neither the WCAB nor the appellate court has the power to replace the IMR decision with its own determination of medical appropriateness. The court also found that the determination of relevant facts is the responsibility of a workers’ compensation judge, but that the need to rule on such facts is relatively rare. Therefore, expense and delay should be decreased under the IMR system compared to other systems.
Gelman disagreed with this assessment. He said he did not see IMR as an improvement over systems used in other states.
“In workers' compensation, the beauty of the system is that it' summary, which means it's quick and efficient, and it's not expensive,” he said.
The IMR system, by contrast, has led to a denial of medical care for workers and unintended expense for both workers and employers, Brown said.
“People are then having to rely on their private health plan and Medi-Cal. Employers pay more to provide health insurance than they do for workers' comp,” Brown said.
Both experts agree that these issues will likely lead to more court cases. Stevens’ attorney filed a petition for review by the California Supreme Court on Dec. 4, 2015, but the court has not yet indicated whether it will hear the case.
“Attorneys for people hurt at work will continue to try to change the system,” Brown said.