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THE DEATH OF DUE PROCESS IN CALIFORNIA INJURY CASES

Unfortunately, a good friend of many has died in California – Mr. Due Process.

It appears, at least to this attorney, that the California Constitution and some of the rights that the authors so eloquently sought to guarantee are being stepped on, ignored and just plan buried by the California Workers’ Compensation System.

Specifically, injured workers, no matter how severe or even catastrophic, their injuries and disabilities may be, now have their treating physicians requests for much needed medical care reviewed and frequently denied at two levels of review. This dynamic (& dastardly) duo is Utilization Review (UR) and Independent Medical Review (IMR). Without going into too much detail at this juncture, as I am informed by many, that effective blogs (like weddings) should be short – suffice it to say that these are both entities that have physicians review on injured workers’ primary treating physicians’ treatment requests, without even seeing, speaking with or examining the injured worker and then proceed to deny well over fifty (50) percent of those requests.

The IMR reviewing physician, who represents the second and higher level of review, is essentially the arbitrator of and for treatment requests. This physician is also anonymous to the injured man or woman and her attorney. The injured worker has no right to interact or be examined by this physician. The injured workers’ attorney is not allowed to know the identity of this physician so that he or she can ask the physician how they arrived at their conclusions, question those conclusions or try to convince that physician that the requested medical care, testing, treatment or surgery is needed.

Additionally, in addition to taking the injured worker out of this equation and the injured workers’ attorney, the Judges in the system have also been summarily stripped of their authority, (except in the most limited of situations) to make determinations of medical necessity – that is, they are not permitted to determine that the treatment requested by the injured worker’s primary treating physician is necessary. Those questions are left to the doctor that no one can know, no one can meet, that no one can contradict. And, again, this is a physician who does not see or examine the injured/disabled worker, no matter how serious or catastrophic their injury.

In most states, as well as in our federal government, we have as one of our branches of governing bodies, the Judiciary (i.e. judges) who have a distinct and essential role – that is to act as a check and balance to our other branches of government and to hear evidence, interpret and enforce laws and the rights of the people those laws were meant to protect. But, apparently not so in the California Workers’ Compensation system. Clearly, one of the most significant rights of an injured employee in California (or any where) is their right to medical treatment. Unfortunately, the right to hear, interpret, evaluate and enforce the injured worker’s rights to such essential treatment has been abrogated to that of a doctor who doesn’t even speak with or examine the injured worker, but only reviews medical records. And, by the way, the current status of the law says that doctors opinion denying medical care can’t be attacked by a judge even in those instances where the doctor has not read and reviewed all relevant medical records and testing.

Rest in Peace Mr. Due Process. We mourn your departure and will do all that we can to keep your memories and your purpose intact.

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