The Court of Appeal has scheduled oral argument in the most closely watched case in California workers’ compensation. The case of Frances Stevens v WCAB is now set for oral argument on September 30, at 9:00 am at the First District Court of Appeal in San Francisco.

Stevens tripped on a rug and broke her foot as she carried boxes of magazines. The relatively simple break triggered serious nerve damage and she was eventually diagnosed with chronic or complex regional pain syndrome. She claims to be mostly confined to a wheelchair and she was awarded total permanent disability.

A dispute arose between Stevens and SCIF about two years ago over her medical care. For several years applicant had the assistance of a home health aide and used certain medications prescribed by Dr. Jamasbi to relieve her symptoms. In late 2012, the home health aide assisting applicant was injured and was unable to continue to provide those services. This led Dr. Jamasbi to submit a Request For Authorization (RFA) to defendant for a new home health aide along with a request to refill four prescriptions which were submitted to UR and denied. The request was also denied after the IMR process which took seven months to complete. In this case, the IMR determination states that that “Medical treatment does not include home maker 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.”

The applicant appealed and the WCJ found there was no provision for a reversal of the IMR finding since the labor code provides only limited circumstances upon which IMR can be reversed. The WCAB denied reconsideration in the panel decision of Stevens vs Outspoken Enterprises Inc. One of the key aspects of the Stevens argument was the constitutionality of the IMR process, an issue the California Applicants Attorney Association has been making since passage of SB 863. In response to this challenge, the WCJ found “While the Constitution confers on the Legislature the power to establish a system of workers’ compensation, section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB agreed that it could not rule on the constitutional issue, and denied reconsideration saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case. The WCJ’s May 27, 2014 denial of applicant’s IMR appeal is affirmed.”

The First District Court of appeal has agreed to hear the case, and this will be the first appellate court to address the constitutional challenge to the IMR process. Briefs have been filed by a great number of Amicus parties including the California Workers’ Compensation Institute, the Property Casualty Insurers Association of America, the California Chamber of Commerce, Voters Injured at Work and the California Applicants’ Attorneys Association.

Another similar constitutional challenge to the IMR process is working its way through the Third District Court of Appeal that recently agreed to hear the case of Ramirez v The State of California Department of Health Care Services involves nearly identical issues. Stevens is more favorable to applicants since the 1st District Court of Appeal is the most liberal, and the Stevens case has the most passionate facts. The 3rd District is located in Sacramento and Its jurisdiction consists of twenty three counties many of which are conservative. Four of the sitting associate justices were appointed by Governor Schwartzenegger. Should the 3rd District in Ramirez rule differently than the 1st District in Stevens, a quagmire would be created that would trigger the intervention by the Supreme Court. Thus, for the defense, the Ramirez appeal is strategically a gift that gives it a foot in the door of a more conservative court.

Typically an opinion is published shortly after oral argument is concluded. It is likely that there will be a decision in Stevens by the end of the year. It is also likely that no matter what outcome, the case will be headed to the California Supreme Court.