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Independent Medical Review (IMR) is the process by which an injured worker may seek to overturn an adverse utilization review determination. Many among the Applicants’ bar in California will argue that only an employee may appeal the IMR determination. However, that is a misconception, likely driven by the rule that only an Applicant may seek IMR following a UR decision. Once an IMR determination is served, it is binding unless appealed timely on very limited grounds. LC 4610.6(h) outlines how to appeal an IMR determination and does not specify which party may file and it clearly does place any restrictions against any particular party seeking to appeal an IMR determination.
For the general practitioner, LC 4610.6(h) provides five grounds for appealing an IMR Determination within 30 days of service of an IMR determination. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:
(1) The administrative director acted without or in excess of the administrative director’s powers.
(2) The determination of the administrative director was procured by fraud.
(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.
(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.
In the case of Jordan Stone v AchieveKids, Caps-Sig (2014 Cal. Wrk. Comp. P.D. LEXIS 663), the Board not only decided it was permissible for Defendant to appeal the IMR determination, the Board even granted Defendant’s appeal of an IMR determination. Factually, the Stone case involved an initial IMR determination overturning utilization review’s denial a right knee cartilage transplant. Defendant appealed the IMR determination on the grounds that it was issued in excess of the Administrative Director’s powers described in LC 4610.6(h)(1) and that it contained plainly erroneous findings that were not subject to an expert’s opinion per LC 4610.6(h)(5).
Defendant's IMR appeal was originally denied by the trial judge and reversed on appeal. The Board found that there was a "patent discrepancy" in stating that the requested surgery was not medically necessary in one section, but then stating that it was medically necessary in another section. The issue was sent to an alternative/new IMR organization to conduct a neutral review. This is the appropriate remedy when an appeal of an IMR determination is granted (LC 4610.6(i)).
So, if you receive an IMR determination that overturns a UR decision look to the 5 grounds for appeal noted above. If you have questions about how this can apply to your workers' compensation cases, email me or find your local Hanna Brophy attorney at www.hannabrophy.com.