Statute prohibiting disclosure of IMR reviewers is constitutional

Saul Zuniga received pain management treatment for a work-related injury.  The workers’ compensation insurer for Zuniga’s employer submitted his physician’s prescription of five pain medications for utilization review, which approved only one of them.  Zuniga appealed the utilization review decision to deny four prescriptions through the independent medical review (IMR) process.  The initial IMR decision affirming the denial of three prescriptions was reversed by the Workers’ Compensation Appeals Board.  While a second IMR was pending, Zuniga petitioned the Board to disclose the identity of the physicians who were the first and second IMR reviewers.  The Board declined, citing Labor Code section 4610.6, subdivision (f), which requires IMR organizations to keep confidential the names of reviewers.  Zuniga filed a writ petition contending that section 4610.6 did not prohibit the Board from compelling disclosure and that any contrary reading violated his due process rights.

The Court of Appeal affirmed, holding section 4610.6, subdivision (f) unambiguously prohibited the Board from compelling disclosure of IMR reviewers.  The court rejected Zuniga’s claim that the confidentiality requirement conflicted with section 4610.6, subdivisions (h)(1)-(4), which specify the authorized grounds for appealing an IMR determination, because the confidentiality provision at most made it more difficult, but not impossible, to prove those grounds.

The Court of Appeal also rejected Zuniga’s due process challenges.  First, the court held that section 4610.6, subdivision (f) did not violate the California Constitution, which grants the Legislature plenary power to create a workers’ compensation system unlimited by any other provision, including the due process clause.  Second, the court agreed with Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074, 1096-1101, which held that the confidentiality provision did not violate the federal Constitution because the IMR process provided adequate due process protections, such as the extensive conflict-of-interest and reporting requirements imposed on IMR organizations.

This bulletin was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.