Jocelyn Bowen injured her neck and right shoulder while working for the County of San Bernardino. Since at least March 9, 2015, she was prescribed, and she used, Norco to control her symptoms of pain.
On November 23, 2015, IMR issued a final determination letter finding, that the prescribed Norco was medically necessary and appropriate. The rationale was that she “rates the pain 8-9 out of 10 on pain scale without medications and 4-5 out of 10 on the pain scale with medications . .. . The injured worker reports functional improvement and improvement in pain with medications. She notes improvement in activities of daily living (ADL) as well as increased ability to reach, lift, grab and hold as a result of her medication usage.”
The following month, the PTP again prescribed Norco based upon the same clinical observations. UR rejected the December RFA which was again appealed to IMR.The second IMR reviewer was a family practice physician, and upheld the UR denial.
The first November 23, 2015 IMR final determination letter was not included, in the information given to the second IMR reviewer, and there is no indication that the second IMR reviewer considered it. The second reviewer noted that “Although the physician noted an improvement in the level of function with medication use, there was no documentation of any specific objective functional improvements with the use of Norco.”
Applicant timely appealed the second IMR determination pursuant to L.C. section 4610.6(h). The WCJ granted the appeal, and found that the IMR determination contained plainly erroneous findings and was without or in excess of the powers of the AD, and rescinded the IMR determination, and ordered the dispute to a new IMR reviewer in the specialty of orthopedic surgery, pain management, and/or physical medicine and rehabilitation. The WCJ also indicated that the new IMR reviewer should review the previous IMR determination.
The former acting Administrative Director objected to the WCJ’s instruction that the new IMR reviewer should review a previous IMR determination approving the prescription for Norco, arguing that review of a prior IMR final determination may detract from the independence of the new review. The AD agreed that the IMR reviewer should be in a specialty more appropriately matched to applicant’s diagnosis, and submitted the matter for a new IMR determination.
The WCAB rejected the limits placed by the Administrative Director and affirmed the WCJ in the panel decision of Bowen v the County of San Bernardino.
The Court of Appeal held that IMR determinations are subject to meaningful review, even if the Appeals Board cannot change medical necessity determinations, noting that “[t]he Board’s authority to review an IMR determination 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.” (Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074, 1100.)
The record reflects that the IMR reviewer did not review all the documents submitted. The record does not reflect the reason these documents were not included in the IMR review or what information was contained in them. It is unknown whether the IMR organization failed to provide these records to the reviewer, or whether the physician reviewer ignored or overlooked them.
As part of the new IMR, applicant may re-submit the November 23, 2015 IMR final determination and all of the PTP reports to the IMR reviewer.