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 INSURAN CE 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 para graph 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 pe tition 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 Cal ifornia 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 Stat e 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, Counsel3

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 o n behalf of Respondents: Law Offices of Allweiss & McMurtry, Michael A. Marks1

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 th e 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_ChronicPainMedicalTreat ment Guidelines.pdf (as of October 28, 2015).
T his 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 Co unty 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 La w 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, Counsel3

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. Marks1

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., Responden ts. A143043
(WCAB No. ADJ1526353 )



### I NTRODUCTION The workers’ compensation system has und ergone major reforms in recent years. Legislation that went into effect in 2004 made the system more efficient and less costly by having injured workers’ requ ests 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 de termines that the

treatment is medically un necessary

. A nd under the UR process
, w orkers can challenge
de cisions denying requested treatment , but employers cannot challenge de cisions approving it

. The 2004 legislation also called for the administrative adoption of a schedule establish ing 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

- 20 04 Reg. Sess.) (Stats. 2004, ch. 34) became effective on April 19, 2004.2

requests

. 2 In 2013 , a dditional reforms went into effect that built off the 2004 legislation
and established a new p roc edure
, independent medical review (IMR)
, to resolve workers’ challenges to UR de cisions

. 3 In this writ proceeding, Frances Stevens challenges the constitutionality of the IMR process. She contends that it violates the state C onstitution’s separati on of powers clause, the state C onstitution’s requirement s 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 p lenary power s over the workers’ co mpensation system
under a rticle XIV, section 4 of the state Constitution (Section 4)

. And we conclude that
her federal due process c hallenge fails b ecause Ca lifornia’s scheme for evaluatin g workers’ treatment requests is fundamentally fair and affords wor kers sufficient opportunities to present evidence and be heard.
But we a lso 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 d etermination
that found
, “ M ed ical treatment does not include

. . . personal care given by home health
aides

. . . wh en this is the only care needed. ” U nder 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 h ealth aide was denied without authority.

2 T his schedule, the Medical Treatment Utilization Schedule (MTUS ), was adopted in 2007 and has since been updated . (Cal. Code Regs., tit. 8, §§ 9792.20

- 9792.2 6.)

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 

### F ACTUAL AND 

### P ROCEDURAL 

### B ACKGROUND
Stevens fractured her right foot in October 1997 w hile working as a magazine editor for Outspoken Enterprises. Between 1999 and 2002, she underwent three surgeries

on th e foot

. In 1 999, she began to have pain in her left foot, mark ing the onset of a

c ondition that was ultimately diagn osed as complex

- regional

- pain syndrome involving
b oth feet. Stevens worked intermittently until 2002, but she was unable to return to work
after th e third surgery

. As a result of the pain in her feet, she was forced to u se 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 ju dge 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, Steven s has received extensive medical care that the SCIF has
covered

. In this proceeding, n o one disputes th e general proposition that Stevens suffers from pain and other ailments and is entitled to receive SCIF

- covered medical care

. Instead, t his case is abo ut a particular request for treatment s ubmitted 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
, d iolofenac cream , and
h ydrocodone

— mainly to alleviat e her pain

. He also sought approval for Stevens to
receive the services of a home health aid e for eight hours a day, five days a week . Th e aid e was to help Stevens with bathing and dressing, moving about her home, preparing meals, and picking up medicati ons from the pharmacy. Dr. Jamasbi’s request was processed under the SCIF’s established UR procedures
and was forward ed to the SCIF’s UR agent, Bunch Care Solutions. The request was then reviewed by Andrew G. Seltzer
, M.D., a b oard

- c ertified anesthesiolog ist who holds a

s ubspecialty c ertification in p ain m anagement. 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 recomm ended treatment.” He also4

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 additi onal medical records.” 4 Dr. Seltzer denied the request and provided an extensi ve, nine

- page rationale for
his decision. First, he maintained that a hom e health aid e was not warranted because the
documentation did not demonstrate that Stevens was homeboun d (“normally unable to leave home unassisted”) or that she required home medical care , much less full

- time care , and because most of the aid e ’s proposed tasks were not medical in nature. Second, h e denied the request for Ativan because the drug’s efficacy for long

- term chronic pain “is

unproven an d 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 shoul d b e used only as a “second

- line option ”
for “short

- term” treatment
, and the drug has limited and diminishing benefits beyond
th ose that can be obtained through nonsteroidal anti

- inflammatory drugs (NSAIDs ). Fourth, he denied the request for d iolofenac cr eam because studies suggest that its
benefit s , if any, are short

- term and quickly diminish, it is most effective f or conditions
Stevens did not have, and it could expose a patient to significant risks, including cardiovascular dangers. And finally, he den ied the request for h ydrocodone because the drug is an opi oid and should be used, if at all, after NSAIDs have been tried , and then only a s a supplement to, not a substitute for
, NSAID s i n “the lowest possible dose” and with a plan in place to closely moni tor 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] cl aim,” and she was invited to call Bunch
Care S olutions if she had questions. She was also informed that she, her physician, or her attorney could ask for an i nternal 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

Stev ens requested the internal review , at least regarding the denial of the request for the four medic ation s

. 5 This review was conducted by Claudio A. Palma, M. D.,
another board

- c ertified anesthesiologist who has a s ubspecialty c ertification in p ain

m anagemen t. 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 a s 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
evide nce for the internal review . This evidence included a seven

- page repor t by
Dr. Jamasbi dated August 14, 2013
, address ing 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 r equest for the four medications should be denied, and he provided a nine

- page explana tion of his decision. Regarding the Ativan, he found that “there remains no (clear) documentation of the intention to treat
over a sho rt course.” Regarding the Fle xe ril, he found that “there remains no (clear) documentation of (acute) muscle spasms.” Regarding the d iolofenac cream, he found
that “there remains no documentation of subjective and objective findings consistent with osteoarthritis pain in joints that l e n d themselves to topical treatment

. . . and the intention to treat over a short course.” And regarding the h ydrocodone, he found that “there
remains no documentation that the prescriptions are from a single[] practitioner and are taken as directed; the l owest possible dose is being prescribed; and there will be ongoing review and documentation of pain relief, function al 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 h ydrocodone] remain unavailable,

5 Our record does not show that Stevens sought an internal review of the decision denying her request for a home health aid e

. 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 notifie d 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
de termination or if [her] physician would like to speak to the Physician Reviewer,” she
should contac t Bunch CareSolutions.
Dissatisfied with the UR and internal

- review decision s , Stevens then requested an IMR

. The SCIF uses a different entity, Maxim us Fed eral Services
, to perform IMRs.
Stevens was again given the opportunity, which she exercised, to submit further
documentation to support her treatment request

. Although our re cord does not contain all
th e material she submitted
, the material apparently i ncluded a supplemental report by
Dr. Jamasbi
, the order finding Stevens to be permanently disabled, numerous physical

therapy reports, four reports authored by the parties’ a greed

- upon medical e xaminer in the liability stage of the proceeding
, an April 201 3 home assessment by an organization
call ed Rehab Without Walls, and 1 7 reports by Dr. Jamasbi dated from Au gust 2012 through October 2013.
The final IMR determination was issued in February 2014, and it upheld the UR denial of the requested medical treat ment. The determination did not identify the IMR physician reviewer but reported that the reviewer wa s “Board C ertified in Pain Management, ha[d] a subspecialty in Disability Evaluation [, was] licen sed to practi ce medicine in California[,]

. . . ha[d] bee n in active clinical practice for more than five years[,] and [was] currently working at least 24 hours a we ek in active practice.” The
determination also noted that this physic ian had “no affiliation with the employer, employee, provider s [,] or . . . cla ims administrator.”
T he IMR d etermination concluded that “none of the disputed items/services are medically necessary and appropriate.” Regarding the home health aid e, the
determination re lied on the MTUS , which i ncludes guideline s for the treatment of c hronic7

pain. 7 The determination stated that the guideline s recommend home health aide s for patients who are “homebound, on a part

- t ime or ‘intermittent’ basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker s ervices 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. I t e xplained that Ativan (a
b enzodiazepine) is not recommended “for long

- term use because long

- term efficacy is unproven and there is a risk of dependence. Most guidelines limit use t o 4 weeks. Their

range of action includes sedative/hypnotic, anxiolytic, antic onvulsant, 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
wi thin months and long

- term use may actually increase anxiety.” T he d etermination 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.” T he determination denied the request for Flexeril because Stevens “continue [d] t o be symptomatic with pain. ” T he determination next explained that d iolofenac cream was not medically necessary because “there is li ttle
evidence [supporting the use of] topical NSAIDs for treatment of osteoarthritis of the spine, hip or sho u lder. Neuropathic pain: Not recommended as there is no evidence to support use. ” Finally, the determination explained that h ydrocodone was medi cally

un necessary because
, while opioi ds 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 be came 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 erro r, 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 appeal ed the IMR determination

— now deemed the director’s decision

— to the Board under section 4610.6, subd ivision (h). Among other arguments, she claimed
that section 4610.6 violates S ection 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 gr ounds permitted by section 4610.6, subdivision (h)

. In particular, t he 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 ref lect an act in excess of the director ’s

powers. T he 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 recommend ation 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 de t ermine the constitutionality of the I MR 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 t he determination unless the appealing party proves one or more of
five grounds for appeal listed by the Legislature in section 4 610 [, subdivision (h) ] by
clear a nd 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 o f Commerce, California Applicants’ Attorneys Association, Voters Injured at Work, and Sonoma County Law Enforcement Association to file amici curiae briefs.9 

### D ISC USSION
Stevens contends that the IMR process violates the state C onstitution’s separati on of powers clause, the state C onstitution’s requirements that workers’ compensation decisions be subject to review and the system “accomplish substantial justice,” an d principles of due process. 10 For the reasons we shall discuss, we reject these arguments.
A. The 200 4 and 2013 Legislati on Sig nificantly Reformed the Process for Consider ing Injured Workers ’ Requests for Medical Treatment. We begin with an overview of h ow 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 in to 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 u nder this power,
the Legislature enacted the worker s ’ 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 ‘ “compensa tion 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 c ertain 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 .)
Th e 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 p owers 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 employer s to secure the payment of
workers ’ compensat ion benefits either by purchasing third

- party insurance or by self

insuring with permission from the Department of Industrial Relations. (§ 3700; see also Denny ’ s Inc. v. Worker s ’ 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 larg ely 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 wa s 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 p p . 2 3 8

- 23 9.) Under the
former process, both the worker and the employer could challenge adverse medical

necessity determinations
, and the criteria by which those determinations were evaluated depend ed on the quantity and quality of the expert evidence presented by the parties. A party dissati sfied 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 w orkers’ compensation carrier[,]

. . . [had] issued policies t o 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, quasi

governmental entity designed by the L egislature 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 Bill s No . 228 and No. 899, went into
effect t o streamline the process and control c osts . ( Sandhage n , supra , 44 Cal.4th at

p p

. 239 , 241 .) Th e legislation made two changes importa nt 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. Wor kers’ Comp. Appeals Bd. (2006)
140 Cal.App. 4th 1498, 1512.) Under th is UR process, workers’ requests for treatment may be approved by a claims administrator, but only a reviewer “competent to evaluate the sp ecific 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 Sandhage n , at p. 240.)
Se c ond, the 2004 legi slation required “ the

. . . director to adopt a medical

treatment utilization schedule to establish uniform guidelines for evaluating treatment requests. [Citation.] The [law required ] this s chedule to incorporate ‘evidence

- based,

peer

- reviewed, national ly recognized standards of care’ and address the ‘appropriaten ess of all treatment procedures

. . . commonly performed in workers ’ compensation cases.’ ” ( Sandhage n , supra , 44 Cal.4th at p. 240.) The legislation mandated that UR
determinations be consist ent 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. ) Th e 2004 reforms were intended “to ensure quality, sta ndardized medical care for worke rs in a prompt and expeditious manner” through a “comprehensive process that balances the dual interests of speed and accuracy, emphasizing the quick re solution of treatment requests,

. . . [in which] a physician, rather
tha n 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 . (C al. Code Regs., tit. 8, §§ 9792.20

- 9792. 2 6.)12

Against this backdrop, the Legislature enacted further reforms that went into effect
in 201 3 establish ing the IMR process to resolve w orkers ’ challenge s to adverse UR
decision s. (Stats. 2012, ch. 363.) In enacting this legislation, the Legislature made
extensive f

indings , which bear repeating . It found that t he then

- existing system of resolving disputes about treatment requests was “ c ostly, t ime 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 ” wa s necessary for th e “[t] imely and medically sound determinations of disputes over appropriate medical treatment .” ( Ibid .) According to the Legislature, “ h aving medical professionals ultimately determine the necessity of requested treatment furthers the social policy of th is 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 “ i ndependent medical review and [providing] for limited appeal of decisions

. . . [was] a necess ary exercise of the Legislature’ s plenary

power ” under Section 4. ( Id. , § 1(g), p. 3720. )
Since the 2004 and 2 013 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 ap prove, modify, or deny the
recommendation

. (§ 4610 , subd. (d).) The criteria used in making the d etermination must be “ consistent with the schedule for medical treatment utilization

. ” (§ 4610,
subd. (f)(2).)13

A UR decision favoring the worker becomes fi nal, and the employer is not permitted to challenge it. (See § 4610.5, subd. (f)(1) .) But if the UR decision modifies, delays, or denie s 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 medica l necessity as defined in subsec tion (c) of Section 4610.5

. ” (§ 4610.6,
subd. (c).) The IMR de termination must state whether the disputed serv ice is medically

necessary , identify the employee’ s medical con dition 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 effectivene ss of the disputed treatment; (3) nationally recognized professional standar ds; (4) expert opinion; and (5) generally accepted standards of medi cal practice. (§ 4610.5,
subd. (c)(2).) If multiple medical professionals review a case, a majority mu st agree on the final decision, and if they are evenly split, the deci sion 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 t he decision without further action by the employer with re gard 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

d eterminatio n 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 di sputes the IMR de termination may app eal 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 t hat the only specified grounds
for relief since the reforms are that the director acted without authority, the decis ion 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).) I f the Bo ard 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

. (§ 46 10.6, subd. (i); see Scheffield Medical Group, Inc. v. Workers’ Comp. Appeals Bd.
, supra , 70 Cal.App.4th at p. 880.) I nstead, 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 t he
Court of A ppeal

. ( § 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 ch ange 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 . (1 993) 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 depa rture from the [former] process

. . ., which permitted an em ployer 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 medi cal

- necessity grounds . (Cal. Code Regs., tit. 8, § 9792.10.1.) This ensured faster final resolution of these decisions, and it15

constituted a meaningful curtailment of employers’ rights. For e mployers, the reforms promised to reduce insurance costs by cr eating uniform medical standards and reduc ing litigation.
With th is understanding of the 20 04 and 2013 reforms, we turn to Stevens’s
constitutional co ntentions.
B

. The Plenary Power s Over the Workers’ Compensation System Conferred on the Legislature by Se ction 4 Are Not Limited by the State Constitution’s Separation of Powers or Due Process Clauses

. Stevens contends that the IMR process violates the s tate 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 the y 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 powe r 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) .)
I n 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.) W e look first to the provision’s text, giving the words their

or dinary 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 o f 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, w e apply the standard presumption that properly enacted statutes are constitutional and that any doubts are resolved in favor of their validity. ( Cop l e y 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 fail s under t he state C onstitution’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’ compensati on, by appropriate legislatio n. ” ( § 4 , italics added. ) Simultaneously , the s eparation of p owers c lause expressly yields to other co nstitutional provisions, including Section 4, by preventing one bran ch of government from ex ercising 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 s eparation of p owers c lause
under the s tate C onstitution’s plain terms

. Section 4 also trumps the s tate Constitution’s d ue p rocess c lause. Our stat e 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. Hort on (2009) 46 Cal.4th 364, 407.) By giving the Legislature plenary power s over the workers’ compensation system, Section 4 modified the reach of the state Cons titution’s due process clause. Section 4’s evolution was described in Bautista , supra , 201 Cal.A pp.4th 716. The

s ection ’ s predecessor, sectio n 21 of article XX
, was approved by the voters in 1911. ( Bautista , at p. 731.) Two years later, the Legislature chang ed the workers’ compensation system from voluntary to mandatory by statute

. ( Ibid. ) In 19 1 7 , 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.) Th e amendment passed , and it “further clarified and exp anded the scope of the Legislature’s co nstitutional authority to enact

. . . legislation as part of a complete system of workers’ compensation. ” ( I d. at p. 732 ; Mathews v. W orkmen’s C omp. A ppeals Bd. (1972) 6 Cal.3d 719, 733, fn. 11.) This evolution comp els 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, 18 50 St ats. 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 s tate C onstitution’s d ue p rocess c lause with respect to legislation passed under the Legislature’s plenary power s over the workers’ compensation system. (See Hustedt v. W orkers’ C omp. A

ppeals B d. (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. W

orkers’ C omp. A

ppeals B d. (1993) 6 Cal.4th 1028, 103 7 [article VI of
the state Constitution governing courts’ jurisdiction inapplicable to extent Legislature has
exercis ed its powers under Section 4].) Thus, even if there were any confl icts between
Section 4 and the s tate Constitution’s separation of power s or due pr ocess 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 S ection 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, w e are not persuaded. The first of these two requirements states, “The Legislat ure is vested with plenary powers, to provide for the settlement of an y 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 o f 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 S t ate.” ( § 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 d ispute 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 i ncumbra nce of any character

. ” ( Ibid. )18

We observe at the o utset 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. W

orkers’ C omp. A

ppeals B d. ( Wiebe ) (1978) 22 Cal.3d 103, 114.) Instead, Section 4 “affirms the legislative prerogative in the workers’ compensation realm
in b road and sweeping language” and confers on the Legislature “the power to ‘fix and
control the method and manner of tria l of any

. . . dispute [s over compensation for injury] [ and ] the rules of evidence [applicable to] the tribunal or t ribunals designated b y it. ’ ” ( Wi e be, 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 t he workers’ compensation system” ] ; Facundo

- Guerrero v. W orkers’
C omp. A ppeals B d. (2008) 163 Cal.A pp.4th 640, 650 [ intent behind Section 4 “was

. . . to endow [ the Legislature] expressly with exclusive and ‘plena ry’ 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 power s 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 power s , neither of which app lies 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., e nact 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., W

i e be, supra , 22 Cal.3d at pp. 110

- 112 ; Bautista, at p. 72619

[declining to adopt employee’s argument that isolated provis ions of Section 4 supersede Legislature’s plenary powers].)
Even if Section 4 itself did impose separate limits on the L egislature’s pl enary
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 c ourts of this State.” ( § 4.) Since the establishment of the IMR process , an aggrieved worker who

contest s a Board decision affirming a medical necessity determination can, as he or she
could before , challenge a Board decision by see king a writ of review from the Court of
A ppeal. (§ 5950.) But as we mentioned above, a lthough appellate courts are now statutorily precluded from making “a determination of medical necessity contrary t o 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. W hereas 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 ] ” ( i bid. ) , such substantial

- evidence review is n o 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 re sult of the UR and IMR, at least two physicians’ conclusions that the requested treatment is unnecessary. U nder the old system , the conclusion s of at least two physicians would have virtually always constituted substantial evidence to uphold an adverse me dical

- necessity determination.
And nothing in the legislative reforms con strain s a Court of A ppeal ’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 work ers’ compensation system provide “substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any20

chara cter.” ( § 4.) In establishing the IMR process, t he Legislature found that the former system of resolving disputes over th e 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 “indep endent 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 n ecessity 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 exerc ise 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. 37 20 .) 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 “ second

guess the wisdom of the L egislature” in making th ese determination s . ( Facundo

Gue rrero v. Workers’ Comp. Appeals Bd. , supra , 163 Cal.App.4th at p. 651; Rio Linda
Union School Di st. v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517
, 532.) In short, there is no basis to c onclude that in establishing the IMR process the Legislatur e acted outside of its plenary powers to enact “appr opriate legislation” governing workers’ compens ation. ( § 4.)
D

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

. Having concluded that the IMR process does not violate the s tate Constitu tion, we
consider whether it viola tes principles of due process under the f ederal Constitution. W e conclude it does not.21

T o prevail on a federal due process claim, plaintiffs must show that the state deprived them of a property or liberty interest withou t afford ing 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 dec iding, both that an IMR determination
constitutes state action and that a claim for medical treatment i mplicates a constitutionally protected property interest. (See California Consumer Health Care Council, Inc. v. California Depar t ment of Managed Health Care (2008) 161 Cal.App.4th 684, 691 ( California Consumer ) [ma king similar assumption].)
We take a moment to explain our assumption , however, in light of the United
States Supreme Court’s holding s in American Manufacturers , supra , 526 U.S. 40 . There,
the Court considered a utilization review decis ion 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
consti tute d state action nor implicated a pro tected 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.) W e are willing to assume that t he IMR
determination here constitutes state action because it , unlike the utilization review
de cision in American Manufacturers , beco mes 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 , su pra , 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 governme nt 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

. “ I f the employees [i n 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, 50 3

- 5 09 [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 o f Stevens’s treatment request. 16

E ven assuming that the IMR determination constituted state action and implicated a protected property interest, however, we nonetheless conclude that Stevens’s federal due process c laim fails because Stevens was afforded am ple 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 aff orded, the amount of process required is determined by balanc ing 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 pro cess. ( Mathews v. Eldridge (1976) 424 U.S. 319, 334

- 3 35.) 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 p rovided in the IMR proced ure

. 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 He alth Care Service Plan
Act of 19 75 , 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 re cognize that the U nited 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. Nati onal Assn. of Radiation Survivors (1985) 473 U.S. 305, 320 , f n. 8.)23

medical care are reviewed under an IMR process codified in Health and Safety Code
section 1 374.30

. ( 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’ fili ngs, 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 comport s 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 bo th sides “submit documentation regar ding the claim
, and the statute allows sufficient time for adequate consideration.” ( California Consumer
,

s upra , 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 su bstantial [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 Consume r , supra , 161 Cal.App.4th 684

. And as a result of the multiple layers of review
, the ris ks 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

. Fina lly, the government’s interest in the IMR process is at least as compelling as the interest in not being forced t o disclose insurance documents
, and the former interest w as expressly and comprehensively identified by the Legislature
itself when it establis hed 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 statutorily2 4

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) 1 6 5 Cal.App.3d 1083, the Court of Appeal concluded that welfare recip ients had a due process right to cross

- examine caseworker s , who w ere authorized to discontinue benefits
on “ [their] own concept of ‘good cause
, ’ ” at a subsequent hearing. ( Id . at p. 1090

. )
Unlike a physici an reviewer, however, these caseworker s were not review ing 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 t o 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 opportunitie s 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 ( I

bi d .) 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 sufficie nt 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 preclud es a ny meaningful appeal of an

17 For example, e ven if Stevens were seeking to cross

- examine witnesses , she would n ot 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 phy sician 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 iden tity 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 a bout 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 , f

n. 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
determination s are subject to meaningful further review even though the Board is unable

to change medical

- necessity de terminations

. 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

. (§ 4610.6, subd. (h) (1) & (5 ) .) These g rounds are considerable and include reviews of both factual and legal questions. If, for example, an IMR determination were to deny
certain medic al 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 b asis 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

serv ices of a home health aide, even though it concluded that Stevens’s “condition requires ‘care’ other than homemaker’s services ” and considered puzzling the26

determination’s statement that “ [m] ed ical treatment does not include

. . . personal care given by ho me health aides like bathing, dressing, and using the bathroom when this is the only care needed

. ” But w hether home hea lth services are authorized when bathing, dressing, and using the bathroom is the only care needed is a question to be resolved by
revie wing 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
hav e the power to conclude that th e 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
“meanin gful appeal to challenge an IMR decision based on an erro neous 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 , subdivisio n (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 limi t 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 Pers onnel Bd. (1995) 10 Cal.4th 1133, 1145.) F urthermore, without deciding whether a writ of mandate may have been available to enforce the time limit ( see i d . 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 e ntitled 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. 

### D ISPOSITION
The decision of the Bo ard aft er 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 t o 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: N o 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 Ron dea u Law Firm, Charles R. Rondeau

Counsel for Respondent Workers’ Compensation Appeals Board : No appearance

Counsel for Respondent s Outspoken Enterprises and State Compensation Insurance Fund, Sacramento: State Compensation Insurance Fund, Lisa A. Liebs on, Deputy Chief Counsel, Mary R. Huckabaa, Assistant Chief Counsel, William L. Anderson , Appellate Counsel
Counsel for Respondent Acting Administrat ive Director Division of Worker s ’ Compensation: Department of Industrial Relation s , Office of the Direct or, 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. Hauscarriag ue , Counsel, Alan S. Hersh, Counsel29

Coun sel 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 Holste dt, David P. Mastagni , Gary G. Gome z

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