Due Process Does Not Require Disclosure of Independent Medical Reviewer

Zuniga v. WCAB (Interactive Trucking, Inc.), 2018 A143290 confirms that Labor Code Section 4610.6(f) prevents the Workers’ Compensation Appeals Board from ordering an Independent Medical Review (IMR) organization from disclosing the names of IMR reviewers. This decision turning back the latest attack on California’s utilization review (UR) program was initially not certified for publication, but the First District Court of Appeal subsequently ordered publication of its opinion.

Saul Zuniga (Applicant) sustained an industrial injury to his left shoulder in 2007, and required multiple surgical procedures and continuing pain management. In 2013, the defendant submitted to UR several medications prescribed by Mr. Zuniga’s pain management physician. UR approved one of the medications, while the others were not certified.

Applicant sought IMR of the utilization review decision, and the Maximus Federal Services IMR reviewer approved one of the medications which was originally denied by UR, but found the remaining medications were not medically necessary. Applicant timely appealed this IMR to the WCAB on the grounds that the decision was based on erroneous understanding of the facts. The workers’ compensation administrative law judge (WCJ) agreed with the Applicant’s argument and reversed the IMR decision.

Labor Code Section 4610.6(i) states that if IMR is reversed, “the dispute shall be remanded to the Division of Workers’ Compensation Administrative Director who shall submit the dispute to IMR by a different independent review organization. In the event that another independent review organization is not available after remand, the administrative director shall submit the dispute to the original medical review organization for review by a different reviewer in the organization.” Therefore, Defendant filed its Petition for Reconsideration of the WCJ decision, and the WCAB agreed.

The IMR decision was referred back to Maximus Federal Services for review by a different reviewer, because there was no other authorized independent review organization. Applicant petitioned the WCJ to order Maximus Federal Services to disclose the identities of both the first and second medical reviewers to ensure that the two reviews were completed by different reviewers. While that petition was pending Maximus issued its second IMR report which included the representation that the second review was completed by a different reviewer. The second review approved some, but not all, of the medications requested. The WCJ ruled on the Applicant’s petition which was filed before the second IMR decision, and held that Maximus could not disclose the identity of the reviewers. The Applicant filed his petition for reconsideration then a petition for writ of review when the WCAB denied reconsideration.

Labor Code Section 4610.6(f) states, “the independent medical review organization shall keep the names of the reviewers confidential in all communications with entities or individuals outside the independent review organization.” The Court of Appeal found this language was unambiguous. The court also stated that this confidentiality requirement was consistent with the legislature’s purpose in establishing the IMR process. The IMR process provides a system for a neutral and unbiased expert to provide timely resolution of disputes involving appropriate medical treatment.

The court was concerned that removing the confidentiality requirement could compromise the independence of the reviewer. Moreover, the court noted that Section 4610.6(f) requires that the independent review organization provide the qualifications of the medical professionals performing the IMR to the administrative director, the employer, the employee, and the employee’s medical provider. This information can be used to verify that serial IMRs are performed by different reviewers.

Finally, following the decision of Division One of the Court of Appeal in Stevens v. Workers’ Comp. Appeals Bd., the court held that keeping the identity of the medical reviewers confidential does not violate state or federal due process. The California Constitution provides the legislature with plenary power to create a workers’ compensation system which supersedes the state Constitution’s due process clause in this area. Further, the statutory scheme for the IMR process does not violate federal due process, as injured workers are provided with notice and a meaningful opportunity to be heard.

The Zuniga decision importantly extends the Stevens holding to a new division of the court of appeal and adds further judicial validation of the utilization review and IMR processes. This system for resolving disputes over medical treatment remains one of the more valuable cost containment tools for defendants and a cornerstone of the SB 863 reform.

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February 23, 2018