1

Filed 11/12/15; second of two modifications—first modification and unmodified opinion attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANCES STEVENS,

Petitioner,

v.

WORKERS’ COMPENSATION 

APPEALS BOARD and OUTSPOKEN 

ENTERPRISES/STATE 

COMPENSATION INSURANCE FUND 

et al.,

Respondents.

A143043

(WCAB No. ADJ1526353)

ORDER MODIFYING OPINION AND 

DENYING REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT

The opinion filed October 28, 2015, is modified by deleting the second sentence in 

the eleventh paragraph under FACTUAL AND PROCEDURAL BACKGROUND and 

replacing it with “A different entity, Maximus Federal Services, is used to perform 

IMRs.”

The modification does not change the appellate judgment. (Cal Rules of Court, 

rule 8.264(c)(2).)

Petitioner’s petition for rehearing is denied.

_____________________________P.J.
2

Trial Court: No County Applies

Trial Judge: None

Counsel for Petitioner: Law Offices of Joseph C. Waxman, Joseph C. 

Waxman, James J. Achermann

Counsel for Amicus Curiae 

California Applicants’ 

Attorneys Association on 

behalf of Petitioner:

The Law Office of Joseph V. Capurro, Joseph V. 

Capurro; Remcho, Johansen & Purcell, LLP, James C. 

Harrison, Margaret R. Prinzing, 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

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
3

Counsel for Amicus Curiae 

California Chamber of 

Congress on behalf of 

Respondents:

Haight Brown & Bonesteel LLP, Theodore A. Penny, 

Melinda Carrido

Counsel for Amicus Curiae 

Sonoma County Law 

Enforcement Association on 

behalf of Respondents:

Mastagni Holstedt, David P. Mastagni, 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
1

Filed 11/4/15 Unmodified opinion attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANCES STEVENS,

Petitioner,

v.

WORKERS’ COMPENSATION 

APPEALS BOARD, OUTSPOKEN 

ENTERPRISES et al.,

Respondents.

A143043

(WCAB No. ADJ1526353)

ORDER MODIFYING OPINION 

[NO CHANGE IN JUDGMENT]

BY THE COURT

The opinion in the above-entitled matter, filed October 28, 2015, is modified to 

delete the content of footnote 7, replacing it with the following:

We grant Stevens’s request to take judicial notice of the Chronic Pain 

Medical Treatment Guidelines (effective July 18, 2009), posted at 

www.dir.ca.gov/dwc/DWCPropRegs/MTUS_ChronicPainMedicalTreatment

Guidelines.pdf (as of October 28, 2015).

This change does not necessitate the renumbering of the footnotes.

This modification does not change the appellate judgment. (Cal. Rules of Court, 

rule 8.264(c)(2).)

Dated: ________________________ ___________________________P.J.
2

Trial Court: No County Applies

Trial Judge: None

Counsel for Petitioner: Law Offices of Joseph C. Waxman, Joseph C. 

Waxman, James J. Achermann

Counsel for Amicus Curiae 

California Applicants’ 

Attorneys Association on 

behalf of Petitioner:

The Law Office of Joseph V. Capurro, Joseph V. 

Capurro; Remcho, Johansen & Purcell, LLP, James C. 

Harrison, Margaret R. Prinzing, 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

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
3

Counsel for Amicus Curiae 

California Chamber of 

Congress on behalf of 

Respondents:

Haight Brown & Bonesteel LLP, Theodore A. Penny, 

Melinda Carrido

Counsel for Amicus Curiae 

Sonoma County Law 

Enforcement Association on 

behalf of Respondents:

Mastagni Holstedt, David P. Mastagni, 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
1

Filed 10/28/15 Unmodified opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANCES STEVENS,

Petitioner,

v.

WORKERS’ COMPENSATION 

APPEALS BOARD, OUTSPOKEN 

ENTERPRISES et al.,

Respondents.

A143043

(WCAB No. ADJ1526353)

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).

1

 Under 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 

 

1

The 2004 legislation relevant to the issues in this case was set forth in two statutes. The 

first, Senate Bill No. 228 (2003-2004 Reg. Sess.) (Stats. 2003, ch. 639, § 28, p. 4923) 

became effective on January 1, 2004. The second, Senate Bill No. 899 (2003-2004 Reg. 

Sess.) (Stats. 2004, ch. 34) became effective on April 19, 2004.
2

requests.

2

 In 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.

 

2

This schedule, the Medical Treatment Utilization Schedule (MTUS), was adopted in 

2007 and has since been updated. (Cal. Code Regs., tit. 8, §§ 9792.20-9792.26.)

3

This legislation was set forth in Senate Bill No. 863 (2011-2012 Reg. Sess.), which 

went into effect on January 1, 2013. It added sections 4610.5 and 4610.6 to the Labor 

Code. (Stats. 2012, ch. 363, §§ 45-46, pp. 3764-3768.) Further undesignated statutory 

references are to the Labor Code.
3

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 
4

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 Flexeril because 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 hydrocodone because 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.”

 

4

The record does not further reveal the content of these additional documents.
5

Stevens requested the internal review, at least regarding the denial of the request 

for the four medications.

5

This 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. Seltzer’s decision. In deciding the 

internal appeal, Dr. Palma considered Dr. Jamasbi’s August 2013 report along with “10 

pages of additional medical records.”6

Dr. Palma agreed with Dr. Seltzer that the request for the four medications should 

be denied, and he provided a nine-page explanation of his decision. Regarding the 

Ativan, he found that “there remains no (clear) documentation of the intention to treat 

over a short course.” Regarding the Flexeril, he found that “there remains no (clear) 

documentation of (acute) muscle spasms.” Regarding the diolofenac cream, he found

that “there remains no documentation of subjective and objective findings consistent with 

osteoarthritis pain in joints that lend themselves to topical treatment . . . and the intention 

to treat over a short course.” And regarding the hydrocodone, he found that “there 

remains no documentation that the prescriptions are from a single[]practitioner and are 

taken as directed; the lowest possible dose is being prescribed; and there will be ongoing 

review and documentation of pain relief, functional status, appropriate medication use, 

and side effects.” Dr. Palma further noted that “[s]hould the missing criteria necessary to 

support the medical necessity of this request [for hydrocodone] remain unavailable, 

 

5 Our record does not show that Stevens sought an internal review of the decision 

denying her request for a home health aide.

6 Our record does not further identify the content of these documents either.
6

discontinuance should include a tapering prior to discontinuing to avoid withdrawal 

symptoms.”

Stevens was notified that the internal review confirmed the UR decision. The 

notice to her stated, “If you have questions about the information in this notice, please 

call us. However, if you are represented by an attorney, please contact your attorney 

instead.” Similarly, she was told that “if [she had] any questions regarding this 

determination or if [her] physician would like to speak to the Physician Reviewer,” she 

should contact Bunch CareSolutions.

Dissatisfied with the UR and internal-review decisions, Stevens then requested an 

IMR. The SCIF uses a different entity, Maximus Federal Services, to perform IMRs. 

Stevens was again given the opportunity, which she exercised, to submit further 

documentation to support her treatment request. Although our record does not contain all

the material she submitted, the material apparently included a supplemental report by 

Dr. Jamasbi, the order finding Stevens to be permanently disabled, numerous physicaltherapy reports, four reports authored by the parties’ agreed-upon medical examiner in 

the liability stage of the proceeding, an April 2013 home assessment by an organization 

called Rehab Without Walls, and 17 reports by Dr. Jamasbi dated from August 2012 

through October 2013.

The final IMR determination was issued in February 2014, and it upheld the UR 

denial of the requested medical treatment. The determination did not identify the IMR

physician reviewer but reported that the reviewer was “Board Certified in Pain 

Management, ha[d] a subspecialty in Disability Evaluation[, was] licensed to practice 

medicine in California[,] . . . ha[d] been in active clinical practice for more than five 

years[,] and [was] currently working at least 24 hours a week in active practice.” The 

determination also noted that this physician had “no affiliation with the employer, 

employee, providers[,] or . . . claims administrator.”

The IMR determination concluded that “none of the disputed items/services are 

medically necessary and appropriate.” Regarding the home health aide, the 

determination relied on the MTUS, which includes guidelines for the treatment of chronic 
7

pain.7 The determination stated that the guidelines recommend home health aides for 

patients who are “homebound, on a part-time or ‘intermittent’ basis, generally up to no 

more than 35 hours per week. Medical treatment does not include homemaker 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 IMR determination also relied on the MTUS in concluding that none of the 

four requested medications was medically necessary. It explained that Ativan (a 

benzodiazepine) is not recommended “for long-term use because long-term efficacy is 

unproven and there is a risk of dependence. Most guidelines limit use to 4 weeks. Their 

range of action includes sedative/hypnotic, anxiolytic, anticonvulsant, and muscle 

relaxant. Chronic benzodiazepines are the treatment of choice in very few conditions. 

Tolerance to hypnotic effects develops rapidly. Tolerance to anxiolytic effects occurs 

within months and long-term use may actually increase anxiety.” The determination then 

explained that Flexeril is recommended for only “a short course of therapy,” with a 

recommended low dosage over no more than two to three weeks, and the greatest benefit

is seen in “the first 4 days of therapy.” The determination denied the request for Flexeril

because Stevens “continue[d] to be symptomatic with pain.” The determination next 

explained that diolofenac cream was not medically necessary because “there is little 

evidence [supporting the use of] topical NSAIDs for treatment of osteoarthritis of the 

spine, hip or shoulder. Neuropathic pain: Not recommended as there is no evidence to 

support use.” Finally, the determination explained that hydrocodone was medically 

unnecessary because, while opioids are “indicated for moderate to moderately severe 

pain[] and are often used for intermittent or breakthrough pain,” they “are [not] seen as an 

effective method in controlling chronic pain.”8 The IMR determination became the 

 

7 We grant Stevens’s request to take judicial notice of the Chronic Pain Medical 

Treatment Guidelines (effective July 18, 2009), posted at A143343 (as of October 28, 

2015).

8

In an apparent typographical error, the comment in the determination omitted the word 

“not.” The comment makes sense only if that word is included.
8

determination of the Director of the Division of Workers’ Compensation (director) as a 

matter of law. (§§ 3206, 4610.6, subd. (g).)

Stevens appealed the IMR determination—now deemed the director’s decision—

to the Board under section 4610.6, subdivision (h). Among other arguments, she claimed

that section 4610.6 violates Section 4 and her rights to due process. The appeal was 

heard by a workers’ compensation judge, who concluded that the appeal was not 

cognizable because it was not brought on grounds permitted by section 4610.6, 

subdivision (h). In particular, the judge held that the IMR determination did not 

“constitute a plainly erroneous express or implied finding of fact on a matter of ordinary 

knowledge not subject to expert opinion” or reflect an act in excess of the director’s 

powers. The judge also concluded that the Board had no jurisdiction to consider the 

constitutionality of section 4610.6.

Stevens petitioned for reconsideration under section 5900, but the Board accepted 

a recommendation of the workers’ compensation judge to deny the petition. In doing so, 

the Board agreed with the judge that it “ha[d] no authority to determine the 

constitutionality of the IMR statutes as sought by applicant.” It ruled that “for purposes 

of appeal to the [Board,] 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[, subdivision (h)] by 

clear and convincing evidence,” and that Stevens had not done so.

Stevens filed a petition for a writ of review in this court under section 5950. After 

briefing was completed,9 we issued a writ of review to address the constitutional 

challenges she raises.

 

9 We granted leave to California Workers’ Compensation Institute and Property Casualty 

Insurers Association of America, California Chamber of Commerce, California 

Applicants’ Attorneys Association, Voters Injured at Work, and Sonoma County Law 

Enforcement Association to file amici curiae briefs.
9

DISCUSSION

Stevens contends that the IMR process 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.10 For the reasons we shall discuss, we reject these arguments.

A. The 2004 and 2013 Legislation Significantly Reformed the Process for

Considering Injured Workers’ Requests for Medical Treatment.

We begin with an overview of how the legislative reforms have changed the 

process for considering injured workers’ requests for medical treatment. We do so 

because Stevens’s near-exclusive focus on the IMR process minimizes other critical 

procedural protections and rights that come into play when an injured worker requests 

medical treatment under the workers’ compensation system.

The state Constitution gives the Legislature “plenary power . . . to create[] and 

enforce a complete system of workers’ compensation.” (§ 4.) Acting under this power, 

the Legislature enacted the workers’ compensation law to govern compensation to 

California workers who are injured in the course of their employment. (§ 3201 et seq.) 

“The underlying premise behind this statutorily created system . . . is the ‘ “compensation 

bargain[,]” ’ . . . [under which] ‘the employer assumes liability for industrial personal 

injury or death without regard to fault in exchange for limitations on the amount of that 

liability. The employee is afforded relatively swift and certain payment of benefits to 

cure or relieve the effects of industrial injury without having to prove fault but, in 

exchange, gives up the wider range of damages potentially available in tort.’ ” 

(Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811.) 

The right to workers’ compensation benefits is entirely statutory. (DuBois v. Workers’ 

Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.)

 

10 We invited and received supplemental briefing on whether the state Constitution’s 

separation of powers and due process clauses are limited by Section 4, which gives the 

Legislature plenary power over the workers’ compensation system.
10

The workers’ compensation law requires employers to secure the payment of 

workers’ compensation benefits either by purchasing third-party insurance or by selfinsuring with permission from the Department of Industrial Relations. (§ 3700; see also 

Denny’s Inc. v. Workers’ Comp. Appeals Bd. (2003) 104 Cal.App.4th 1433, 1439.) Many 

employers, such as Stevens’s, obtain their third-party insurance from the SCIF.

11

Before 2004, an employer’s obligation to cover an injured worker’s medical 

treatment was largely in the hands of the worker’s treating physician. “[T]here were no 

uniform medical treatment guidelines in place” to instruct the treating physician, and 

there was a rebuttable presumption that the physician’s determinations were correct. 

(State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 

230, 238.) Back then, if an employer wanted to challenge a treating physician’s 

recommendation, its only recourse was through a “cumbersome, lengthy, and potentially 

costly” dispute resolution process. (Ibid.) Generally, this process required the parties 

either to stipulate to an agreed-upon medical evaluator or to propose alternative medical 

evaluators and, if a dispute remained after the evaluations were completed, to litigate 

their dispute before a workers’ compensation judge. (Id. at pp. 238-239.) Under the 

former process, both the worker and the employer could challenge adverse medicalnecessity determinations, and the criteria by which those determinations were evaluated 

depended on the quantity and quality of the expert evidence presented by the parties. A 

party dissatisfied with the workers’ compensation judge’s decision could then appeal it to 

the Board, which could assess the evidence and make factual determinations different 

from those made by the judge. (Scheffield Medical Group, Inc. v. Workers’ Comp. 

Appeals Bd. (1999) 70 Cal.App.4th 868, 880.)

 

11 At least as of 1999, the SCIF “was the state’s largest workers’ compensation 

carrier[,] . . . [had] issued policies to more than 250,000 California employers, and ha[d] 

held itself out to the public as the most experienced carrier in California.” (Notrica v. 

State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 918.) It is a unique, quasigovernmental entity designed by the Legislature to “be fairly competitive with other 

insurers” and to be “neither more nor less than self-supporting.” (Ins. Code, § 11775; see 

also California Attorneys, etc. v. Brown (2011) 195 Cal.App.4th 119, 124.)
11

In 2004, two pieces of legislation, Senate Bills No. 228 and No. 899, went into 

effect to streamline the process and control costs. (Sandhagen, supra, 44 Cal.4th at 

pp. 239, 241.) The legislation made two changes important to the issues before us. First, 

it required every employer to establish a UR process that “prospectively, retrospectively, 

or concurrently reviews and approves, modifies, delays, or denies medical treatment 

services.” (Sierra Pacific Industries v. Workers’ Comp. Appeals Bd. (2006) 

140 Cal.App.4th 1498, 1512.) Under this UR process, workers’ requests for treatment 

may be approved by a claims administrator, but only a reviewer “competent to evaluate 

the specific clinical issues involved . . . [that are] within the scope of the individual’s 

practice”—not, as before, a claims administrator or employer—may “modify, delay, or 

deny a request for authorization.” (Cal. Code Regs., tit. 8, § 9792.9.1(e)(1); see also 

Sandhagen, at p. 240.)

Second, the 2004 legislation required “the . . . director to adopt a medical 

treatment utilization schedule to establish uniform guidelines for evaluating treatment 

requests. [Citation.] The [law required] this schedule to incorporate ‘evidence-based, 

peer-reviewed, nationally recognized standards of care’ and address the ‘appropriateness 

of all treatment procedures . . . commonly performed in workers’ compensation cases.’ ” 

(Sandhagen, supra, 44 Cal.4th at p. 240.) The legislation mandated that UR

determinations be consistent with the schedule, and it created “a rebuttable presumption 

that the treatment guidelines in the utilization schedule were correct on the issue of extent 

and scope of medical treatment.”12 (Ibid.) The 2004 reforms were intended “to ensure 

quality, standardized medical care for workers in a prompt and expeditious manner” 

through a “comprehensive process that balances the dual interests of speed and accuracy, 

emphasizing the quick resolution of treatment requests, . . . [in which] a physician, rather 

than a claims adjuster with no medical training, makes the decision to deny, delay, or 

modify treatment.” (Id. at p. 241.)

 

12 As mentioned previously, the MTUS was adopted in June 2007. (Cal. Code Regs., 

tit. 8, §§ 9792.20-9792.26.)
12

Against this backdrop, the Legislature enacted further reforms that went into effect 

in 2013 establishing the IMR process to resolve workers’ challenges to adverse UR 

decisions. (Stats. 2012, ch. 363.) In enacting this legislation, the Legislature made 

extensive findings, which bear repeating. It found that the then-existing system of 

resolving disputes about treatment requests was “costly, time consuming, and [did] not 

uniformly result in the provision of treatment that adhere[d] to the highest standards of 

evidence-based medicine, [and this] adversely affect[ed] the health and safety of workers 

injured in the course of employment.” (Id., § 1(d), p. 3719.) It further found that “[t]he 

existing process of appointing qualified medical evaluators to examine patients and 

resolve treatment disputes [was] costly and time-consuming, and it prolong[ed] disputes 

and cause[d] delays in medical treatment for injured workers.” (Id., § 1(f), p. 3720.) It 

also found that “the process of selection of qualified medical evaluators [could] bias the 

outcomes” and that the “independent and unbiased medical expertise of specialists” was 

necessary for the “[t]imely and medically sound determinations of disputes over 

appropriate medical treatment.” (Ibid.) According to the Legislature, “having medical 

professionals ultimately determine the necessity of requested treatment furthers the social 

policy of this state in reference to using evidence-based medicine to provide injured 

workers with the highest quality of medical care,” and “the provision . . . establishing 

independent medical review [is] necessary to implement that policy.” (Id., §1(e), 

p. 3719.) Finally, it found that establishing “independent medical review and [providing] 

for limited appeal of decisions . . . [was] a necessary exercise of the Legislature’s plenary 

power” under Section 4. (Id., § 1(g), p. 3720.)

Since the 2004 and 2013 reforms, a worker’s physician now submits a treatment 

recommendation that is reviewed under the employer’s UR process. (§ 4610.) A 

“medical director” designated by the employer or insurer reviews all information 

“reasonably necessary” to determine whether to approve, modify, or deny the 

recommendation. (§ 4610, subd. (d).) The criteria used in making the determination

must be “consistent with the schedule for medical treatment utilization.” (§ 4610, 

subd. (f)(2).)
13

A UR decision favoring the worker becomes final, and the employer is not 

permitted to challenge it. (See § 4610.5, subd. (f)(1).) But if the UR decision modifies, 

delays, or denies a request, the worker may seek review through an IMR.13 (§ 4610.5, 

subd. (d).) In other words, the IMR process gives workers, but not employers, a second 

chance to obtain a decision in their favor.

The IMR is performed by an independent review organization, which assigns 

medical professionals to review pertinent medical records, provider reports, and other 

information submitted to the organization or requested from the parties. (§ 4610.6, 

subd. (b).) The physician reviewer is to approve the requested treatment if it is 

“medically necessary based on the specific medical needs of the employee and the 

standards of medical necessity as defined in subsection (c) of Section 4610.5.” (§ 4610.6, 

subd. (c).) The IMR determination must state whether the disputed service is medically 

necessary, identify the employee’s medical condition and the relevant medical records, 

and set forth the relevant findings associated with the standards of medical necessity. 

(§ 4610.6, subd. (e).) These standards include, in the order listed in the statute: (1) the 

MTUS; (2) peer-reviewed scientific and medical evidence regarding the effectiveness of 

the disputed treatment; (3) nationally recognized professional standards; (4) expert 

opinion; and (5) generally accepted standards of medical practice. (§ 4610.5, 

subd. (c)(2).) If multiple medical professionals review a case, a majority must agree on 

the final decision, and if they are evenly split, the decision must favor the worker. 

(§ 4610.6, subd. (e).) Decisions must include the reviewing medical professionals’ 

qualifications, but the independent review organization is to “keep the names of the 

reviewers confidential in all [outside] communications.” (§ 4610.6, subd. (f).) The IMR 

 

13 “A [UR] decision to modify, delay, or deny a treatment recommendation shall remain 

effective for 12 months from the date of the decision without further action by the 

employer with regard to any further recommendation by the same physician for the same 

treatment unless the further recommendation is supported by a documented change in the 

facts material to the basis of the [UR] decision.” (§ 4610, subd. (g)(6).) We do not know 

whether Stevens ever resubmitted a request for authorization of the treatment sought.
14

determination is deemed as a matter of law to constitute the determination of the director

and is binding on all parties. (§ 4610.6, subd. (g).)

A worker who disputes the IMR determination may appeal it to the Board. 

(§ 4610.6, subd. (h).) Such an appeal proceeds under the standard claim-presentation 

procedures set forth under section 5500 et sequitur, except that the only specified grounds 

for relief since the reforms are that the director acted without authority, the decision was 

procured by fraud, the physician reviewer had a material conflict of interest, the decision 

was the result of bias, or the decision was based on a plainly erroneous fact that is not a

matter subject to expert opinion. (§ 4610.6, subd. (h).) If the Board reverses the 

decision, it cannot now, as it could before, reweigh the evidence and make a contrary 

factual determination as to the medical necessity of the requested treatment. (§ 4610.6, 

subd. (i); see Scheffield Medical Group, Inc. v. Workers’ Comp. Appeals Bd., supra,

70 Cal.App.4th at p. 880.) Instead, it may only remand the case for a new IMR. 

(§ 4610.6, subd. (i).)

Finally, a Board decision can still be challenged by filing a writ of review in the 

Court of Appeal. (§ 5950.) Although appellate courts are now explicitly precluded from 

making “a determination of medical necessity contrary to the determination of the 

independent medical review[er]” (§ 4610.6, subd. (i)), this change has little practical 

effect since they never had the authority to make factual determinations in the first place. 

(See Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 

227, 233.)

Both workers and employers benefitted from the 2004 and 2013 reforms. For 

workers, the reforms ensured that treatment requests would no longer be modified, 

delayed, or denied except by a physician. “This represent[ed] a significant departure 

from the [former] process . . ., which permitted an employer or claims adjuster (without 

review by a physician) to object to a treatment request.” (Sandhagen, supra, 44 Cal.4th 

at p. 240.) Workers also secured a guarantee that UR decisions rendered in their favor 

could not be challenged by employers on medical-necessity grounds. (Cal. Code Regs., 

tit. 8, § 9792.10.1.) This ensured faster final resolution of these decisions, and it 
15

constituted a meaningful curtailment of employers’ rights. For employers, the reforms 

promised to reduce insurance costs by creating uniform medical standards and reducing

litigation.

With this understanding of the 2004 and 2013 reforms, we turn to Stevens’s

constitutional contentions.

B. The Plenary Powers Over the Workers’ Compensation System Conferred 

on the Legislature by Section 4 Are Not Limited by the State Constitution’s 

Separation of Powers or Due Process Clauses.

Stevens contends that the IMR process violates the state Constitution’s separation 

of powers and due process clauses. We reject this claim because Section 4 supersedes 

these clauses even if we were to suppose that they somehow conflict with Section 4.

The separation of powers clause states, “The powers of state government are 

legislative, executive, and judicial. Persons charged with the exercise of one power may 

not exercise either of the others except as permitted by this Constitution.” (Cal. Const., 

art. III, § 3.) The due process clause states, “A person may not be deprived of life, 

liberty, or property without due process of law.” (Id., art. I, § 7(a).)

In interpreting constitutional provisions, our goal is to ascertain the intent behind 

them. (Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 

49 Cal.4th 277, 290.) We look first to the provision’s text, giving the words their 

ordinary meaning. (Ibid.) When the language is unambiguous, we need go no further. 

(Ibid.) But if the language permits more than one reasonable interpretation, we may 

consider other indicators of intent, such as legislative history. (Bautista v. State of 

California (2011) 201 Cal.App.4th 716, 724 (Bautista); Quarterman v. Kefauver (1997) 

55 Cal.App.4th 1366, 1371.) In evaluating the constitutionality of the IMR process, we 

apply the standard presumption that properly enacted statutes are constitutional and that 

any doubts are resolved in favor of their validity. (Copley Press, Inc. v. Superior Court

(2006) 39 Cal.4th 1272, 1302; Lockyer v. City and County of San Francisco (2004) 

33 Cal.4th 1055, 1086.)

Stevens’s separation-of-powers claim fails under the state Constitution’s plain 

terms. Under Section 4, the Legislature “is [] expressly vested with plenary power, 
16

unlimited by any provision of this Constitution, to create, and enforce a complete system 

of workers’ compensation, by appropriate legislation.” (§ 4, italics added.) 

Simultaneously, the separation of powers clause expressly yields to other constitutional 

provisions, including Section 4, by preventing one branch of government from exercising 

the powers of another “except as permitted by this Constitution.” (Id., art. III, § 3, italics 

added.) Thus, there is no question that Section 4 trumps the separation of powers clause 

under the state Constitution’s plain terms.

Section 4 also trumps the state Constitution’s due process clause. Our state 

Supreme Court has made clear that constitutional amendments can be “understood as 

carving out an exception to the preexisting scope of the . . . due process clause[] with 

respect to the subject matter encompassed by the new provision.”14 (Strauss v. Horton

(2009) 46 Cal.4th 364, 407.) By giving the Legislature plenary powers over the workers’ 

compensation system, Section 4 modified the reach of the state Constitution’s due 

process clause.

Section 4’s evolution was described in Bautista, supra, 201 Cal.App.4th 716. The 

section’s predecessor, section 21 of article XX, was approved by the voters in 1911. 

(Bautista, at p. 731.) Two years later, the Legislature changed the workers’ 

compensation system from voluntary to mandatory by statute. (Ibid.) In 1917, the 

Legislature recommended to the voters a constitutional amendment to “ ‘remove all 

doubts as to the constitutionality of then[-]existing [workers’] compensation laws.’ ” (Id.

at pp. 731-732.) The amendment passed, and it “further clarified and expanded the scope 

of the Legislature’s constitutional authority to enact . . . legislation as part of a complete 

system of workers’ compensation.” (Id. at p. 732; Mathews v. Workmen’s Comp. 

Appeals Bd. (1972) 6 Cal.3d 719, 733, fn. 11.) This evolution compels the conclusion 

 

14 The original due process clause, which is substantively identical to the current one, was 

part of the Constitution when it was ratified in 1850. (Cal. Const., art. I, § 8, 1850 Stats. 

p. 25 [“No person shall be . . . deprived of life, liberty, or property, without due process 

of law”].) As a result of a reorganization of article I by the voters’ passage of Proposition 

7 in 1974, the clause is now set forth in section 7. (See Historical Notes, 1 West’s Ann. 

Const. Code (2002 ed.) foll. art. 1, § 7, p. 252.)
17

that Section 4 supersedes the state Constitution’s due process clause with respect to 

legislation passed under the Legislature’s plenary powers over the workers’ 

compensation system. (See Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 

329, 343 [“It is well established that the adoption of [Section 4] ‘effected a repeal pro 

tanto’ of any state constitutional provisions which conflicted with that amendment”]; see 

also Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037 [article VI of 

the state Constitution governing courts’ jurisdiction inapplicable to extent Legislature has 

exercised its powers under Section 4].) Thus, even if there were any conflicts between 

Section 4 and the state Constitution’s separation of powers or due process clauses—a 

conclusion we do not and need not reach—the plenary powers conferred by Section 4

would still control.

C. The IMR Process Does Not Violate Section 4.

We next consider Stevens’s argument that the IMR process violates Section 4’s 

own requirements that tribunal decisions be subject to review by appellate courts and that 

the workers’ compensation system provide “substantial justice in all cases.” Again, we 

are not persuaded.

The first of these two requirements states, “The Legislature is vested with plenary 

powers, to provide for the settlement of any disputes . . . by arbitration, or . . . by the 

courts, or by either, any, or all of these agencies, either separately or in combination, and 

may fix and control the method and manner of trial of any such dispute, the rules of 

evidence and the manner of review of decisions rendered by the tribunal or tribunals 

designated by it; provided, that all decisions of any such tribunal shall be subject to 

review by the appellate courts of this State.” (§ 4.) The second requirement states, “A 

complete system of workers’ compensation includes . . . full provision for vesting power, 

authority and jurisdiction in an administrative body with all the requisite governmental 

functions to determine any dispute or matter arising under such legislation, to the end that 

the administration of such legislation shall accomplish substantial justice in all cases 

expeditiously, inexpensively, and without incumbrance of any character.” (Ibid.)
18

We observe at the outset that the notion that Section 4 itself imposes separate 

restraints on the plenary powers it confers on the Legislature has been decidedly rejected. 

“[A]bsolutely nothing” in Section 4 “purports to limit the Legislature’s authority to enact 

additional appropriate legislation for the protection of employees.” (City and County of 

San Francisco v. Workers’ Comp. Appeals Bd. (Wiebe) (1978) 22 Cal.3d 103, 114.) 

Instead, Section 4 “affirms the legislative prerogative in the workers’ compensation realm 

in broad and sweeping language” and confers on the Legislature “the power to ‘fix and 

control the method and manner of trial of any . . . dispute[s over compensation for injury] 

[and] the rules of evidence [applicable to] the tribunal or tribunals designated by it.’ ” 

(Wiebe, at p. 115.)

The Legislature’s broad power over workers’ compensation matters has been 

repeatedly affirmed. (See, e.g., Bautista, supra, 201 Cal.App.4th at p. 725 [“The grant of 

‘plenary power[]’ gives the Legislature complete, absolute, and unqualified power to 

create and enact the workers’ compensation system”]; Facundo-Guerrero v. Workers’ 

Comp. Appeals Bd. (2008) 163 Cal.App.4th 640, 650 [intent behind Section 4 “was . . . to 

endow [the Legislature] expressly with exclusive and ‘plenary’ authority to determine the 

contours and content of our state’s workers’ compensation system”].) These cases 

confirm that nearly any exercise of the Legislature’s plenary powers over workers’ 

compensation is permissible so long as the Legislature finds its action to be “necessary to 

the effectiveness of the system of workers’ compensation.” (Greener v. Workers’ Comp. 

Appeals Bd., supra, 6 Cal.4th at p. 1038, fn. 8.) Indeed, the only limitations on the 

Legislature’s plenary powers, neither of which applies here, are that the Legislature 

cannot act outside of its authority to create and to enforce a complete system of workers’ 

compensation (see Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 343), 

or, as we discuss below in section II.D., enact a provision that conflicts with federal law. 

We have found no authority permitting us to invalidate a statute on the basis of Section 4 

itself when the Legislature has made a finding of necessity in enacting the statute, as it 

did here. (See, e.g., Wiebe, supra, 22 Cal.3d at pp. 110-112; Bautista, at p. 726 
19

[declining to adopt employee’s argument that isolated provisions of Section 4 supersede 

Legislature’s plenary powers].)

Even if Section 4 itself did impose separate limits on the Legislature’s plenary 

powers, we would reject Stevens’s specific contentions that the IMR process violates 

those limits. First, the IMR process does not violate Section 4’s requirement “that all 

decisions of any such tribunal shall be subject to review by the appellate courts of this 

State.” (§ 4.) Since the establishment of the IMR process, an aggrieved worker who 

contests a Board decision affirming a medical necessity determination can, as he or she

could before, challenge a Board decision by seeking a writ of review from the Court of 

Appeal. (§ 5950.) But as we mentioned above, although appellate courts are now 

statutorily precluded from making “a determination of medical necessity contrary to the 

determination of the [IMR] organization” (§ 4610.6, subd. (i)), they never had the 

authority to make such a determination in the first place. (Western Growers Ins. Co. v. 

Workers’ Comp. Appeals Bd., supra, 16 Cal.App.4th at p. 233.) Instead, the reforms 

limited appellate review only indirectly, to the extent they limited the Board’s ability to 

review IMR determinations. Whereas previously the Court of Appeal could “determine 

whether the evidence, when viewed in light of the entire record, support[ed] the award of 

the [Board]” (ibid.), such substantial-evidence review is no longer available because the 

Board is precluded from making its own factual findings. This has a slight practical 

impact, however, because under the current system, the record for a worker’s challenge in 

the Court of Appeal necessarily includes, as a result of the UR and IMR, at least two 

physicians’ conclusions that the requested treatment is unnecessary. Under the old 

system, the conclusions of at least two physicians would have virtually always 

constituted substantial evidence to uphold an adverse medical-necessity determination. 

And nothing in the legislative reforms constrains a Court of Appeal’s consideration of 

any other issue.

We are similarly unconvinced by Stevens’s argument that section 4610.6 conflicts 

with Section 4’s mandate that the workers’ compensation system provide “substantial 

justice in all cases expeditiously, inexpensively, and without encumbrance of any 
20

character.” (§ 4.) In establishing the IMR process, the Legislature found that the former

system of resolving disputes over the medical necessity of requested treatment impeded 

justice because it was “costly and time-consuming, and it prolong[ed] disputes and 

cause[d] delays in medical treatment for injured workers.” (Stats. 2012, ch. 363, § 1(f), 

p. 3720.) It found that “independent and unbiased medical expertise of specialists” is 

necessary for “[t]imely and medically sound determinations of disputes over appropriate 

medical treatment.” (Ibid.) Similarly, it found that “having medical professionals 

ultimately determine the necessity of requested treatment furthers the social policy of this 

state in reference to using evidence-based medicine to provide injured workers with the 

highest quality of medical care and that the provision[s] of the act establishing 

independent medical review are necessary to implement that policy.” (Id., § 1(e), 

p. 3719.) Finally, it found that “the establishment of independent medical review and 

provision for limited appeal of decisions resulting from independent medical review are a 

necessary exercise of the Legislature’s plenary power to provide for the settlement of any 

disputes arising under the workers’ compensation laws of this state and to control the 

manner of review of such decisions.” (Id., § 1(g), p. 3720.) In sum, the Legislature 

found that, far from conflicting with Section 4’s mandate to provide substantial justice, 

the IMR process furthers it. It is not our place under the state Constitution to “secondguess the wisdom of the Legislature” in making these determinations. (FacundoGuerrero v. Workers’ Comp. Appeals Bd., supra, 163 Cal.App.4th at p. 651; Rio Linda 

Union School Dist. v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, 532.)

In short, there is no basis to conclude that in establishing the IMR process the 

Legislature acted outside of its plenary powers to enact “appropriate legislation” 

governing workers’ compensation. (§ 4.)

D. The IMR Process Does Not Violate the Federal Due Process Clause.

Having concluded that the IMR process does not violate the state Constitution, we 

consider whether it violates principles of due process under the federal Constitution. We 

conclude it does not.
21

To prevail on a federal due process claim, plaintiffs must show that the state 

deprived them of a property or liberty interest without affording sufficient notice and 

opportunity to be heard.

15

 (American Manufacturers Mutual Ins. Co. v. Sullivan (1999) 

526 U.S. 40, 59 (American Manufacturers).) In considering the issues under the federal 

due process clause, we shall assume, without deciding, both that an IMR determination 

constitutes state action and that a claim for medical treatment implicates a 

constitutionally protected property interest. (See California Consumer Health Care 

Council, Inc. v. California Department of Managed Health Care (2008) 161 Cal.App.4th 

684, 691 (California Consumer) [making similar assumption].)

We take a moment to explain our assumption, however, in light of the United 

States Supreme Court’s holdings in American Manufacturers, supra, 526 U.S. 40. There, 

the Court considered a utilization review decision rendered under the Pennsylvania

workers’ compensation system that denied payment for medical treatment while the 

claim was being considered. (Id. at pp. 45-47.) The Court held that the denial neither 

constituted state action nor implicated a protected property interest. (Id. at pp. 58, 61.) 

As for state action, the Court found that the insurance entity lacked a “ ‘sufficiently close 

nexus’ ” with the state. (Id. at p. 52.) We are willing to assume that the IMR 

determination here constitutes state action because it, unlike the utilization review 

decision in American Manufacturers, becomes the decision of the director—a state 

official—as a matter of law. (§ 4610.6, subd. (g).)

American Manufacturers also held that the Pennsylvania utilization review

decision did not implicate a “property interest in the medical benefits” since such an 

interest would arise only if the treatment requested was shown to be reasonable and 

necessary. (American Manufacturers, supra, 526 U.S. at pp. 60-61.) But the utilization 

review decision in American Manufacturers, unlike the IMR determination here, only 

 

15 The initial analytical framework would be slightly different if state law principles 

applied, because a person “need not be entitled to a benefit provided by the government 

to have an interest protected under [the California] due process clause.” (Las Lomas 

Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855; see also 

People v. Ramirez (1979) 25 Cal.3d 260, 264-265.)
22

addressed whether payments were required while a claim for medical treatment was 

under consideration. “If the employees [in American Manufacturers] had claimed that 

the statute provided inadequate procedures for establishing such a right [to the benefit 

itself], the [high] court’s analysis might have been very different.” (Giaimo v. City of 

New Haven (2001) 257 Conn. 481, 503-509 [concluding that Connecticut applicants for 

workers’ compensation benefits possess a protected property interest].) Thus, we assume 

that the IMR determination here implicated a protected property interest because it 

resolved the substantive merits of Stevens’s treatment request.16

Even assuming that the IMR determination constituted state action and implicated 

a protected property interest, however, we nonetheless conclude that Stevens’s federal 

due process claim fails because Stevens was afforded ample process. “The core of due 

process is the right to notice and a meaningful opportunity to be heard.” (LaChance v. 

Erickson (1998) 522 U.S. 262, 266; see also Cleveland Bd. of Educ. v. Loudermill (1985) 

470 U.S. 532, 547.) When due process must be afforded, the amount of process required 

is determined by balancing the affected private interest, the risk of erroneous deprivation 

of this interest, the probable value, if any, of additional or substitute safeguards, and the 

government’s interest in the process. (Mathews v. Eldridge (1976) 424 U.S. 319, 334-

335.) In employing this analysis, we reiterate that workers seeking treatment under 

California’s scheme receive far more process, including through UR, than just that which 

is provided in the IMR procedure. 

Our consideration of this issue is guided by California Consumer, supra, 161 

Cal.App.4th 684. There, the Court of Appeal considered a federal due process challenge 

to denials of medical claims submitted under the Knox-Keene Health Care Service Plan

Act of 1975, Health and Safety Code section 1340 et sequitur (Knox-Keene Act). 

(California Consumer, at pp. 687-688, 690.) Under the Knox-Keene Act, requests for 

 

16 In making our assumption, we also recognize that the United States Supreme Court has 

never squarely resolved whether applicants for statutory benefits, as opposed to those 

already receiving them, have protected property interests. (See Lyng v. Payne (1986) 

476 U.S. 926, 942; Walters v. National Assn. of Radiation Survivors (1985) 473 U.S. 305,

320, fn. 8.)
23

medical care are reviewed under an IMR process codified in Health and Safety Code 

section 1374.30. (California Consumer, at p. 687.) In filing a claim, patients are allowed 

to submit their own and their medical provider’s records. The insurer is also allowed to 

submit material. But, while insurers are allowed to see and rebut claimants’ filings, 

claimants are not allowed to see and rebut insurers’ filings. (Id. at p. 692.)

Notwithstanding this disparity, the Court of Appeal held that the IMR process 

under the Knox-Keene Act comports with due process. It acknowledged the patients’ 

interest in “receiving contracted-for medical care,” but it found the risk of an erroneous 

deprivation to be low since both sides “submit documentation regarding the claim, and 

the statute allows sufficient time for adequate consideration.” (California Consumer, 

supra, 161 Cal.App.4th at p. 692.) At the same time, the court found the governmental 

interests to be strong. It concluded that forcing disclosure of all documents the insurer

submits to the independent review organization would be “cumbersome” and “would

slow down the process and create a substantial [governmental] burden . . . with little 

resulting benefit in most cases.” (Id. at p. 693.)

Here, workers have an interest in obtaining medical services similar to that of the 

patients in California Consumer, supra, 161 Cal.App.4th 684. And as a result of the 

multiple layers of review, the risks of erroneous deprivations under the workers’ 

compensation system appear to be fewer, and certainly no more, than the risks under the 

Knox-Keene Act procedures. Finally, the government’s interest in the IMR process is at 

least as compelling as the interest in not being forced to disclose insurance documents, 

and the former interest was expressly and comprehensively identified by the Legislature

itself when it established that process. Consistent with California Consumer, we cannot 

conclude after considering these factors that California’s process for reviewing workers’ 

medical requests violates “[t]he core of due process” by failing to provide notice and a 

meaningful opportunity to be heard. (LaChance v. Erickson, supra, 522 U.S. at p. 266.)

We are similarly unconvinced by Stevens’s insistence that the IMR process 

violates due process because the physician reviewer is anonymous and not subject to

cross-examination. The reviewers are not workers’ adversaries: they are statutorily 
24

authorized decision makers. We have found no authority for the proposition that a party 

has a right to cross-examine such decision makers. In Jennings v. Jones (1985) 165

Cal.App.3d 1083, the Court of Appeal concluded that welfare recipients had a due 

process right to cross-examine caseworkers, who were authorized to discontinue benefits

on “[their] own concept of ‘good cause,’ ” at a subsequent hearing. (Id. at p. 1090.) 

Unlike a physician reviewer, however, these caseworkers were not reviewing a decision 

but were instead making the initial decision. Welfare recipients would lack a meaningful 

opportunity to challenge the basis of the caseworkers’ decisions without having an 

opportunity to discover what that basis was. In contrast, injured workers requesting 

treatment under the workers’ compensation system are given detailed explanations of the 

reasons for a denial or modification of their request, and they are given multiple 

opportunities to submit evidence and challenge those decisions. “Procedural due process 

is not a static concept, but a flexible one to be applied to the needs of the particular 

situations.”17 (Ibid.) The IMR is only one aspect of the process afforded to workers who 

request treatment, and we conclude that the process in its entirety provides sufficient due 

process protections.18

Stevens also argues that, regardless of the opportunities to be heard, section 

4610.6 violates due process because it “limits and precludes any meaningful appeal of an 

 

17 For example, even if Stevens were seeking to cross-examine witnesses, she would not 

necessarily be entitled to do so. (See Stardust Mobile Estates, LLC v. City of San 

Buenaventura (2007) 147 Cal.App.4th 1170, 1189 [need for cross-examination less 

“critical” in “cases involving documentary evidence” than in “cases that turn upon the 

testimony of live witnesses”].)

18 In a related argument, Stevens claims that the confidentiality of the physician 

reviewer’s identity renders meaningless the ability of workers to challenge an IMR 

decision on the basis of “a material conflict of interest” as allowed by section 4610.6, 

subdivision (h)(3). We agree that the confidentiality of the reviewer’s identity makes 

such challenges more difficult, but as pointed out by counsel for Outspoken Enterprises 

and the SCIF at oral argument, workers have the opportunity to obtain significant other 

information bearing on conflicts of interest, including information about the IMR 

organization’s “method of selecting expert reviewers and matching [them] to specific 

cases,” system of identifying and recruiting expert reviewers, and method of “ensur[ing] 

compliance with the [statutory] conflict-of-interest requirements.” (§ 139.5, 

subds. (d)(2)(F)-(H), (e).)
25

IMR determination” and provides “no means to address conflicts about what constitutes 

medical treatment.” (Boldface and initial capitalization omitted.) Again, we disagree.

To begin with, it is far from clear that the federal due process clause necessarily 

requires any review of governmental decisions. (See, e.g., Pennzoil Co. v. Texaco, Inc. 

(1987) 481 U.S. 1, 31, fn. 4 (conc. opn. of Stevens, J.) [disclaiming constitutional right to 

civil appeals]; Griffin v. Illinois (1956) 351 U.S. 12, 18 [“It is true that a State is not 

required by the Federal Constitution to provide appellate courts or a right to appellate 

review at all”]; Reetz v. Michigan (1903) 188 U.S. 505, 508 [“Neither is the right of 

appeal essential to due process of law”].) In any event, the IMR process is itself a review. 

It is a review of the UR determination, which, in turn, includes yet another separate 

internal review.

But even more to the point, and contrary to Stevens’s contention, IMR 

determinations are subject to meaningful further review even though the Board is unable 

to change medical-necessity determinations. The 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. 

(§ 4610.6, subd. (h)(1) & (5).) These grounds are considerable and include reviews of 

both factual and legal questions. If, for example, an IMR determination were to deny 

certain medical treatment because the treatment was not suitable for a person weighing 

less than 140 pounds, but the information submitted for review showed the applicant 

weighed 180 pounds, the Board could set aside the determination as based on a plainly 

erroneous fact. Similarly, the denial of a particular treatment request on the basis that the 

treatment is not permitted by the MTUS would be reviewable on the ground that the 

treatment actually is permitted by the MTUS. An IMR determination denying treatment 

on this basis would have been adopted without authority and would thus be reviewable.

Here, the Board failed to appreciate this latter point. In its final order, it ruled that 

it was powerless to review the IMR determination categorically denying Stevens the 

services of a home health aide, even though it concluded that Stevens’s “condition 

requires ‘care’ other than homemaker’s services” and considered puzzling the 
26

determination’s statement that “[m]edical treatment does not include . . . personal care 

given by home health aides like bathing, dressing, and using the bathroom when this is 

the only care needed.” But whether home health services are authorized when bathing, 

dressing, and using the bathroom is the only care needed is a question to be resolved by 

reviewing and interpreting the MTUS. If the Board were to conclude that the IMR 

determination incorrectly affirmed the denial of these services by wrongly interpreting 

the MTUS, and it were to find there are no other reasons supporting the denial, it would 

have the power to conclude that the determination was adopted without authority. 

(§ 4610.6, subd. (h).)19 We therefore disagree with Stevens that the IMR process 

provides “no means to address conflicts about what constitutes medical treatment” and no 

“meaningful appeal to challenge an IMR decision based on an erroneous interpretation of 

the law.”

Lastly, we reject Stevens’s argument that the IMR process violates due process 

because there are “no meaningful enforcement procedures of the statutory time limits” for 

IMR decisions. (Boldface and initial capitalization omitted.) In its final decision, the 

Board noted that Stevens’s IMR determination took over seven months and found fault 

with the lack of a statutory mechanism to enforce section 4610.6, subdivision (d)’s 

requirement that IMR determinations be made within 30 days. We are unconvinced that 

the lack of a mechanism to enforce time limits renders the IMR process unconstitutional. 

In the absence of a penalty, consequence, or contrary intent, a time limit is typically 

considered to be directory, and its violation does not require the invalidation of the action 

to which the time limit applies. (See, e.g., California Correctional Peace Officers Assn. 

v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145.) Furthermore, without deciding 

whether a writ of mandate may have been available to enforce the time limit (see id. at p. 

 

19 Stevens’s petition seeks relief based on only constitutional claims, and we lack a 

complete record of what was considered by the independent medical reviewer. Thus, we 

do not decide whether Stevens might have been entitled to relief on the basis that the 

IMR determination was adopted without authority or based on a plainly erroneous fact. 

(§ 4610.6, subd. (h).)
27

1148), we note that Stevens did not attempt to seek one or otherwise to insist on timely 

compliance.

DISPOSITION

The decision of the Board after reconsideration is affirmed, except we remand to 

the Board for a determination whether the director acted in excess of authority in 

deciding that personal care given by home health aides was not medically necessary for 

Stevens. The parties are to bear their own costs. (See Cal. Rules of Court, rule 

8.493(a)(1)(B).)

_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Dondero, J.
28

Trial Court: No County Applies

Trial Judge: None

Counsel for Petitioner: Law Offices of Joseph C. Waxman, Joseph C. 

Waxman, James J. Achermann

Counsel for Amicus Curiae 

California Applicants’ 

Attorneys Association on 

behalf of Petitioner:

The Law Office of Joseph V. Capurro, Joseph V. 

Capurro; Remcho, Johansen & Purcell, LLP, James C. 

Harrison, Margaret R. Prinzing, 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

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
29

Counsel for Amicus Curiae 

California Chamber of 

Congress on behalf of 

Respondents:

Haight Brown & Bonesteel LLP, Theodore A. Penny,

Melinda Carrido

Counsel for Amicus Curiae 

Sonoma County Law 

Enforcement Association on 

behalf of Respondents:

Mastagni Holstedt, David P. Mastagni, 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