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Carolyn Bertrand, while employed during the period of 1989 to March 4, 2002, as a counselor by the County of Orange, permissibly self-insured, sustained an industrial cumulative trauma injury to her low back and neck. The case was resolved by way of Stipulated Findings and Award and Order, dated July 20, 2004, finding applicant sustained 38% permanent disability and need for further medical treatment based upon the opinion of the AME, Dr. Wilson. In “other stipulations,” the parties provided that: “Settlement based upon the report of AME Lynn Wilson. Future medical care to be provided pursuant to his opinion. When practical, Applicant will notify Defendant of need for treatment prior to obtaining same. For any future disputes regarding treatment or permanent disability, the parties will return to the A .M .E.”

Applicant filed a Declaration of Readiness to Proceed to Expedited Hearing on April 22, 2014, citing the issue of her entitlement to medical treatment based upon an untimely UR denial and defendant’s failure to forward all relevant medical evidence. In a pre-trial statement prepared May 14, 2014, the parties delineated the issue as whether the 2013 Labor Code section changes creating the IMR process, or the parties’ stipulations, control the resolution of medical treatment disputes.

The WCJ concluded that the language in the parties’ stipulation means that the UR process in Labor Code section 4610 is not applicable to disputes involving medical treatment, as the UR process was in place at the time the parties entered into their stipulations and they knowingly waived that existing legal right by contractually agreeing to a different process to resolve medical treatment disputes. Further, the WCJ found that the subsequent statutory change creating the IMR process to review a contest of a UR decision, does not nullify the parties’ contractual waiver.

The employer sought reconsideration contending that the WCJ’s order to return to the AME misconstrued the parties’ stipulation, and that the intent of the stipulation was to return to the AME in the event of a dispute after the Utilization Review (UR) process, and not to circumvent UR. Defendant asserts, however, that the new Independent Medical Review (IMR) process supersedes the parties’ stipulation to have the AME resolve treatment disputes.

The WCAB concurred with the WCJ that the parties may contractually waive their right to pursue the statutory review processes in favor of submitting disputes over medical treatment to a specified AME, a request for medical treatment must be submitted to UR before a dispute has arisen. The WCAB thus found in the panel decision of Bertrand v County of Orange that the defendant must submit a request for medical treatment to UR before a dispute may be referred to the AME for resolution.

“The WCJ correctly held that the new !MR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME. The recent change to IMR as the method of review of medical treatment disputes, as provided in Labor Code section 4610.6, does not supersede the parties’ stipulation as defendant argues. A change in law does not relieve a party from a lawfully entered stipulation. (See Fireman’s Fund Insurance Company v. Workers’ Comp. Appeals. Bd. (Allen) (2010) 181 Cal.App.4th 752 [75 Cal.Comp.Cases 1] [CJGA not entitled to void stipulation to pay 50% of medical treatment award after subsequent appellate decisions clarified law that CJGA had no liability.].)”

“However, the WCJ’s view that the parties’ stipulation necessarily avoids the UR process is not persuasive. While the parties’ stipulation provides that they will refer medical treatment disputes to the AME, it does not specify what process they intended to circumvent by that referral. Jn order to implement the parties’ stipulation to have medical treatment disputes referred to the AME, there must be a dispute between the parties over a specific treatment request. For a dispute to exist there must first be a UR denial, otherwise there would be no dispute to refer to the AME.”