Zuniga: First District Rematch

LISA E. IVANCICH, ESQ.

Antioch, California

In a surprising move, the First District Court of Appeal recently granted applicant Saul Zuniga’s Petition for Writ of Review (ADJ2563341) for consideration of whether the identity of an independent medical review (IMR) physician must be disclosed in the event of a judge-ordered second IMR. The court precluded further briefing and/or oral arguments and stated, "The justices will be familiar with the facts and issues, will have conferred among themselves and will not require oral argument." Indeed, only a short while ago, on October 28, 2015, the same court reviewed a frontal attack on Labor Code section 4601.6 in Stevens v. WCAB (2015) 80 Cal.Comp.Cases 1262.While many in our legal community are skeptical regarding the Court of Appeals’ grasp of the complex web of California workers’ compensation laws, it is tempting to infer that the justices are already tired of arguments regarding the medical review reforms. Perhaps they wish to shut down all argument as to the constitutionality of the IMR process, or perhaps some change is afoot and the justices wish to modify or refine their findings in the Stevens case.

In Stevens the petitioner argued that Labor Code section 4601.6 violated the injured worker’s fundamental right of due process and the state constitutional mandate for separation of powers. It further argued that the legislation thwarted the very purpose of the workers’ compensation system: "to accomplish substantial justice." The court disagreed and held that as the decision of an independent medical reviewer is reviewable by the courts (although only after a judicial finding that the IMR is fraudulent, involves demonstrated conflict of interest, or is "plainly erroneous"), there is no denial of due process to an injured worker denied prescribed treatment. The court emphasized that medical treatment is not a protected property right. The justices concluded, in fact, that utilization review (UR) and IMR are of particular benefit to the employee as it is licensed physicians rather than lay claims examiners who conduct these reviews. The decision included this dictum: