Stevens v. Workers' Comp. Appeals Bd.

• Decision Date: 28 October 2015
• Docket Number: A143043
• Citation: 194 Cal.Rptr.3d 469,241 Cal.App.4th 1074
• Court: California Court of Appeals Court of Appeals
• Parties: Frances STEVENS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Outspoken Enterprises et Al., Respondents.

241 Cal.App.4th 1074

194 Cal.Rptr.3d 469

Frances STEVENS, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD, Outspoken Enterprises et Al., Respondents.

A143043

Court of Appeal, First District, Division 1, California.

Filed October 28, 2015

As Modified November 4, 2015

As Modified on Denial of Rehearing November 12, 2015

Counsel for Petitioner: Law Offices of Joseph C. Waxman, Joseph C. Waxman, James J. Achermann, San Francisco.

Counsel for Amicus Curiae California Applicants' Attorneys Association on behalf of Petitioner: The Law Office of Joseph V. Capurro, Joseph V. Capurro, San Jose; Remcho, Johansen & Purcell, LLP, James C. Harrison, Margaret R. Prinzing, San Leandro, Harry Berezin.

Counsel for Amicus Curiae Voters Injured at Work on behalf of Petitioner: Law Office of Charles E. Clark, Charles E. Clark; The Rondeau Law Firm, Charles R. Rondeau, Los Angeles.

Counsel for Respondent Workers' Compensation Appeals Board: No appearance.

Counsel for Respondents Outspoken Enterprises and State Compensation Insurance Fund, Sacramento: State Compensation Insurance Fund, Lisa A. Liebson, Deputy Chief Counsel, Mary R. Huckabaa, Assistant Chief Counsel, William L. Anderson, Appellate Counsel.

Counsel for Respondent Acting Administrative Director Division of Workers' Compensation: Department of Industrial Relations, Office of the Director, Legal Unit, Christopher G. Jagard, Chief Counsel, Kim E. Card, Counsel; Department of Industrial Relations Division of Workers' Compensation, George Parisotto, Acting Chief Counsel, Yvonne M. Hauscarriague, Counsel, Alan S. Hersh, Counsel.

Counsel for Amicus Curiae California Chamber of Congress on behalf of Respondents: Haight Brown & Bonesteel LLP, Theodore A. Penny, Melinda Carrido, Los Angeles.

Counsel for Amicus Curiae Sonoma County Law Enforcement Association on behalf of Respondents: Mastagni Holstedt, David P. Mastagni, Sacramento, Gary G. Gomez.

Counsel for Amicus Curiae California Workers' Compensation Institute & Property and Casualty Insurers Association of America on behalf of Respondents: Law Offices of Allweiss & McMurtry, Michael A. Marks.

HUMES, P.J.

Introduction

The workers' compensation system has undergone major reforms in recent years. Legislation that went into effect in 2004 made the system more efficient and less costly by having injured workers' requests for medical treatment evaluated through a process called utilization review (UR).¹Under the UR process, a request for treatment cannot be denied by a claims adjustor and must be approved unless a clinician determines that the treatment is medically unnecessary. And under the UR process, workers can challenge decisions denying requested treatment, but employers cannot challenge decisions approving it. The 2004 legislation also called for the administrative adoption of a schedule establishing uniform standards for physicians to use in evaluating treatment requests.²In 2013, additional reforms went into effect that built off the 2004 legislation and established a new procedure, independent medical review (IMR), to resolve workers' challenges to UR decisions.³

In this writ proceeding, Frances Stevens challenges the constitutionality of the IMR process. She contends that it violates the state Constitution's separation of powers clause, the state Constitution's requirements that workers' compensation decisions be subject to review and the system “accomplish substantial justice,” and principles of due process. We are not persuaded. We conclude that her state constitutional challenges fail because the Legislature has plenary powers over the workers' compensation system under article XIV, section 4 of the state Constitution(Section 4). And we conclude that her federal due process challenge fails because California's scheme for evaluating workers' treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard.

But we also conclude that the Workers' Compensation Appeals Board (the Board) misunderstood its statutory authority in one respect when it reviewed Stevens's appeal. The Board concluded that it was unable to review the portion of the IMR determination that found, “Medical treatment does not include ... personal care given by home health aides ... when this is the only care needed.” Under the 2013 reforms, however, the Board is empowered to review an IMR decision to consider whether care was denied without authority because the care is authorized under the MTUS. (§ 4610.6, subd. (h)(1) & (5).) We therefore remand this matter to the Board to consider whether Stevens's request for a home health aide was denied without authority.

Factual and Procedural Background

Stevens fractured her right foot in October 1997 while working as a magazine editor for Outspoken Enterprises. Between 1999 and 2002, she underwent three surgeries on the foot. In 1999, she began to have pain in her left foot, marking the onset of a condition that was ultimately diagnosed as complex-regional-pain syndrome

involving both feet. Stevens worked intermittently until 2002, but she was unable to return to work after the third surgery. As a result of the pain in her feet, she was forced to use a wheelchair and that, in turn, caused low-back and bilateral-shoulder pain. Eventually, she became severely depressed. Following a trial in May 2013, a workers' compensation judge determined that she was permanently totally disabled.

Stevens's employer was insured by the State Compensation Insurance Fund (the SCIF), which has accepted responsibility for her related medical care since the original injury. Over the years, Stevens has received extensive medical care that the SCIF has covered. In this proceeding, no one disputes the general proposition that Stevens suffers from pain and other ailments and is entitled to receive SCIF-covered medical care.

Instead, this case is about a particular request for treatment submitted to the SCIF in July 2013 by Stevens's physician, Babak Jamasbi, M.D. Dr. Jamasbi sought approval for Stevens to receive four medications—Ativan, Flexeril

, diolofenac cream, and hydrocodone—mainly to alleviate her pain. He also sought approval for Stevens to receive the services of a home health aide for eight hours a day, five days a week. The aide was to help Stevens with bathing and dressing, moving about her home, preparing meals, and picking up medications from the pharmacy.

Dr. Jamasbi's request was processed under the SCIF's established UR procedures and was forwarded to the SCIF's UR agent, Bunch CareSolutions. The request was then reviewed by Andrew G. Seltzer, M.D., a board-certified anesthesiologist who holds a subspecialty certification in pain management. Dr. Seltzer certified that he had no “material personal, professional, or financial conflict of interest with the patient, health care providers, insurer/payer, referring entity, or the recommended treatment.” He also certified that his compensation was not “dependent in any way on the specific outcome of the case.” In reviewing Dr. Jamasbi's request, Dr. Seltzer considered a July 19, 2013 medical report by Dr. Jamasbi and “15 pages of additional medical records.”⁴

Dr. Seltzer denied the request and provided an extensive, nine-page rationale for his decision. First, he maintained that a home health aide was not warranted because the documentation did not demonstrate that Stevens was homebound (“normally unable to leave home unassisted”) 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. Second, he denied the request for Ativan

because the drug's efficacy for long-term chronic pain “is unproven and there is a risk of dependence,” noting that “[m]ost guidelines limit use to 4 weeks.” Third, he denied the request for Flexerilbecause there was no evidence that Stevens has acute muscle spasms, the drug should be used only as a “second-line option” for “short-term” treatment, and the drug has limited and diminishing benefits beyond those that can be obtained through nonsteroidal anti-inflammatory drugs (NSAIDs). Fourth, he denied the request for diolofenac cream because studies suggest that its benefits, if any, are short-term and quickly diminish, it is most effective for conditions Stevens did not have, and it could expose a patient to significant risks, including cardiovascular dangers. And finally, he denied the request for hydrocodonebecause the drug is an opioid and should be used, if at all, after NSAIDs have been tried, and then only as a supplement to, not a substitute for, NSAIDs in “the lowest possible dose” and with a plan in place to closely monitor its proper use—especially with patients, like Stevens, who suffer from depression or have other mental-health issues.

A letter notifying Stevens of Dr. Seltzer's decision informed her that she had “a right to disagree with decisions affecting [her] claim,” and she was invited to call Bunch CareSolutions if she had questions. She was also informed that she, her physician, or her attorney could ask for an internal review of the decision, which would be performed by a different “Physician Advisor.”

Stevens requested the internal review, at least regarding the denial of the request for the four medications.⁵This review was conducted by Claudio A. Palma, M.D., another board-certified anesthesiologist who has a subspecialty certification in pain management. As did Dr. Seltzer, Dr. Palma certified that he had no “material personal, professional, or financial conflict of interest with the patient, health care providers, insurer/payer, referring entity, or the recommended treatment.” And as did Dr. Seltzer, he certified that his compensation was not “dependent in any way on the specific outcome of the case.”

Stevens was given, and she exercised, the opportunity to submit additional evidence for the internal review. This evidence included a seven-page report by Dr. Jamasbi dated August 14, 2013, addressing Dr....