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Francis Stevens v. WCAB(Outspoken Enterprises et al) 2015

By: Vic Redula

STATEMENT OF FACTS: Frances Stevens was the editor, publisher and founder of CURVE, a magazine for lesbians. She lives in San Francisco, married and have two children, both boys. In October, 1997 she was injured when she fell carrying three boxes of that month's magazine to be processed for distribution. She fractured her right foot. She had three surgeries on that foot. Unfortunately, her medical condition developed into a condition diagnosed as complex-regional-pain syndrome involving both feet. She has constant intense pain. She can't stand or walk without burning pain on her feet. She has fallen several times getting from her wheelchair to the bed, bathroom, dining table and to shower. She now has injuries to both shoulders, low back and suffers from depression. Following a trial in May, 2013, a judge determined that she was permanently totally disabled and that she needs further medical care to cure or relieve her from the effects of her injury.

The IMR process became effective on all dates of injury beginning July 1, 2013. In July, 2013, Ms. Steven's physician, Babak Jamasbi  M.D. prescribed four medications and services of a home health aide for eight hours a day, five days a week. The aide was to help her with bathing,dressing, moving about her home, preparing meals, and picking up medications from the pharmacy. The prescription was reviewed by SCIF's utilization reviewer, Bunch Care Solutions. Just like most UR's, the prescription was denied. The home health aide was denied because she was not homebound or that she required home medical care, much less full-time care, and because most of the aide's proposed tasks were not medical in nature. After the denial, Stevens requested internal review and submitted additional evidence. The internal reviewer concurred with the prior UR denial.

Stevens was dissatisfied with the internal review decisions and requested an IMR (Independent Medical Review). The IMR determination issued on February, 2014 and it upheld the UR denial of all the requested treatment. On the home health aide, the determination was based on the MTUS which recommends home health aides for patients who are homebound, on a part-time or intermittent basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed."

Stevens appealed the IMR Determinations. Among other things, she claims that section 4610.6 violates Section 4 of the State Constitution and her rights to due process. The appeal was denied. The judge held that the IMR determination did not constitute a plainly erroneous express or implied finding of fact on a matter of ordinary knowledge not subject to expert opinion or reflect an act in excess of the director's powers. The judge also concluded that the Board had no jurisdiction to consider the constitutionality of section 4610.6 Stevens filed a Petition for Reconsideration which was denied by the Appeals Board. Stevens then filed a writ of review under section 5950.

COURT'S DECISION After receiving written and oral arguments, the Court held: 1. A UR decision favoring the worker becomes final, and the employer is not permitted to challenge it; LC section 4610.5(f)(1). 2. The IMR is to approve the requested treatment if it is medically necessary based on the specific medical needs of the employee and the standards of medical necessity; those standards include 1) the MTUS, 2) the peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed treatment; 3) nationally recognized professional standards; 4) expert opinion; and 5) generally accepted standards of medical practice. 3) If multiple medical professionals review a case, a majority must agree on the final decision, and if they are evenly split, the decision must favor the worker. LC 4610.6(e). 4) The IMR process does not violate the state Constitution's separation of powers and due process clauses because Section 4 supersedes these clauses even if we were to suppose that they somehow conflict with Section 4, and that the IMR Process does not violate this Section.

ANALYSIS BY THIS WRITER With this Decision, I am now convinced that any Constitutional challenge to any law is almost impossible because of Section 4 that seems to create an almost insurmountable barrier against such constitutional challenges. The only apparent possible solution is by a Proposition Amending Section 4 of the state's Constitution. However, we can at least get some crumbs that fell off the Steven's table: 1. That once an RFA is approved, defendant cannot later on challenge said approval. 2. IMR Determinations are subject to meaningful further review even though the Board is unable to change medical-necessity determinations; it includes the authority to determine whether it was adopted without authority or based on a plainly erroneous fact that is not a matter of expert opinion. 3. The denial of a particular treatment request on the basis that the treatment is not permitted by the MTUS would be reviewable on the ground that the treatment actually is permitted by the MTUS. An IMR determination denying treatment on this basis would have been adopted without authority.

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