IMR - A Civil Rights Violation (California)

[socalprose]

Has this been tried or have all WC legal professionals done nothing since 2013 when the UR/IMR system was enacted.

Nowhere in the US judicial system can a person lose rights or property on the basis of the testimony of an unknown witness except in California's WCAB IMR system. 4610.6.f has Maximus Federal keeping the identity of IMR doctors confidential. We have all seen IMR doctors return decisions contrary to the submitted facts. How does anyone know if IMR reviews are even being performed by licensed doctors? We all simply take Maximus Federal's word for it?

Why hasn't any legal professional questioned the constitutionality of this practice?

In Greene v. McElroy, 360 U.S. 474, 496 (1959), the Supreme Court stated “Certain principles have remained relatively immutable in our jurisprudence. One of these is that, where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment, which provides that, in all criminal cases, the accused shall enjoy the right "to be confronted with the witnesses against him." This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative and regulatory actions were under scrutiny."

Since I do not see any WC attorney stopping California or Maximus Federal, my intentions are to file a civil rights lawsuit against Maximus Federal. 42 USC 1983 states "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress". 1983 has been used to sue police officers and other government employees who have violated people's civil rights. Maximus Federal, under California's Labor code statutes, violates IW's civil right to due process. In this meaning, 1) Maximus Federal, a corporation, is a legal person, 2) as far as I can tell, they do not qualify for any type of immunity, and 3) the 5th, 6th, and 14th amendments guarantee individuals the right to due process which includes being about to know and address testimony against them, even in administrative actions.

Instead of tell me I can't do this, any suggestions on the best way to proceed, or has this been tried? I am not interested in fighting to change the WC code. My approach is to simply seek excessive monetary damages. If enough monetary damages are awarded, eventually the system will change on its own.

[Manila]

Like the fighting spirit.

[vampireinthenight]

You should definitely do some research because, yes, it has been litigated. See Zuniga v. Workers' Comp. Appeals Bd., 19 Cal. App. 5th 981
Here is an overview:
https://www.lexisnexis.com/legalnewsroo ... mr-process

In my humble opinion, I always thought the best challenge was against the CA constitutional mandate that the WC system be subject to review by the courts. As we know, almost none of the IMR issues are reviewable by courts.

[jpod]

But the Courts have said that the IMR system does allow review by the Courts of Appeal. The Courts repeatedly said there was plenty of due process.

The original post really is off the mark in that there is no property right to WC benefits which has been repeatedly ruled to be wholly statutory. Workers' comp is a public policy that is designed not to allocate fault, but to allocate costs to the consumers who buy the goods and services of a business. All human endeavors lead to mistakes, accidents etc. and those costs according to the US Supreme Court are no different than labor and material costs and should be included in the price of those goods/products.

Respondeat Superior is also a public policy that recognizes the inevitable reality of human behavior will lead to mistakes, negligence etc. The employer is liable for their employees actions not be cause they exert control over the worker but because the mistakes, errors and negligence of the enterprise should be borne by its customers.

[LawAdvocate]

Unfortunately your understanding of the legal process which would give you the right to sue Maximus and prevail, does not exist.

You think Applicant attorney's, particularly the California Applicant Attorney's Association did not litigate the day lights out of this since the reviewers are not named at the Maximus level, plus about 300 other flaws with the IMR system - wake up Rip Van Winkle, as others have indicated the case law on this can fill a couple of volumes.

Workers' Compensation is administrative law, as jpod indicated, you have no vested property rights, therefore you have no standing to sue Maximus for any perceived loss of civil rights. Others have tried, the cases were all lost on summary judgement and the people were charged Maximus' attorney fees and court costs. Of course people are going to tell you, it can't be done, because the first issue is jurisdiction and it isn't there. The second issue is that civil rights arise out of people who are in a protected class. Since all people are treated equally within the IMR system with no to little indication as to their protected class status, you don't have a civil rights violation, even if you are a member of a protected class. You are confusing legal apples, oranges and the rare pomegranate.

If you have that much money to burn, it is recommended that you make a hefty donation to something that will bear more fruit. Check out Heifer.org, the gift that keeps giving to impoverished families.

[socalprose]

As I stated at the end of my post, I am not interested in changing California WC laws and policy. I would love monetary damages against Maximus, but I would settle for being able to force the disclosure of the identity of the IMR doctor. This doctor is a quack and ignored the medical evidence. The only good thing is that according to Maximus, the doctor practices in California so he is within reach of a medical malpractice lawsuit. I again have to ask, how do any of us know that these IMR doctors even exists? Maximus Federal has been successfully sued by the Federal Government for falsifying medical claims for Government workers. Who's to say that this fictitious doctor Maximus describes in their IMR determination even exists. I absolutely do not want to expose myself to liability for Maximus's legal costs, so if there is no reasonable way to expose the doctor's identity, I will simply have to attack the problem from a different direction (see my next posting "Future Medical - a RICO property damage"). To close out this thread, unless someone has another idea; if the identity of the IMR doctor cannot be disclosed, then am I correct that in a civil action the IMR determination cannot be introduced as evidence because of "lack of foundation" or whatever the legal concept is (i.e. testimony from an undisclosed source that one cannot even cross examined, should not be allowed)?

[Barney5]

I do not believe IMR doctors are within the reach of medical malpractice lawsuits, as a case involving a UR doctor was tossed on same premise. UR doctors cannot be held civilly liable for their determinations (in my opinion they should be held liable).

I cannot help you with your other questions, however I can try to help you with what I do when a reviewer ignores relevant records sent, and reviewing the records would have otherwise gotten the request approved. I sent you this info in a private message.

Your heart is in the right place. I wish you the best of luck.

[jpod]

You can no more cross examine the IMR physician than you can cross-ex a Workers' comp judge (read the cases!!). The IMR physician is not treating the patient; she or he is reviewing the treater's documentation for what treatment the provider is recommending and making a recommendation as a special master to the Administrative Director.

[LawAdvocate]

"Future Medical - a RICO property damage" - no, won't work

Workers' compensation rights are not a vested property right. Again, everything you have described is so outside of the realm of legal possibility you will be wasting time and money.

[vampireinthenight]

I don't know man, it sounds kind of selfish. You could try to change the law and help everyone but all you want is money for yourself?

The thing is, you will have to challenge the laws. The UR doc is applying the MTUS found in CA regulatory law. Even if we warped reality enough to allow you to identify and then depose the UR physician, what do you think they are going to say that would help your claim for damages? The doctor is going to say that your PTP request did not meet MTUS standards under CA law. What would you do with that?

Nothing, because without an Award of something, you don't have a right to it. Perhaps sadly, there is no automatic entitlement to a form of treatment just because one doctor recommends it. You need to show that the CCR/Labor Code infringes on your right to the benefits you seek. Which, again, has been tried already.

But the Courts have said that the IMR system does allow review by the Courts of Appeal. The Courts repeatedly said there was plenty of due process.

True, jpod, but I would like to hear from the Supreme Court on this. I do not agree with the decisions as they stand. I think it is sort of disingenuous to automatically preclude any form of appeal in 99.9% of the cases and then declare that the courts have "review" because of the .1% that even allow for a petition to the courts of appeal.