Torres: A Lawyer Signed the IMR Appeal. Why Was That Not Enough?

The letter says the medication your doctor prescribed for a work injury is not medically necessary. Your lawyer files an appeal and signs it. You expect a judge to look at whether the reviewer ignored your doctor’s records.

Christopher Torres’s appeal stopped short of that question. A workers’ compensation judge dismissed his appeal from Independent Medical Review, or IMR, because no one had sworn to what it said. The Workers’ Compensation Appeals Board agreed the appeal could be dismissed. Then it gave him one more chance to fix it.

The case is Torres v. Contra Costa Schools Insurance Group, Nos. ADJ3011154, ADJ3631113 (WCAB Aug. 28, 2014), a significant panel decision. It teaches three things. A lawyer’s signature is not a verification. A missing verification does not automatically end an appeal, but leaving it uncorrected after notice can. And a second chance comes with exact terms.

A pain-medication dispute passed through two reviews

Torres’s case began with a pain patch. He worked as a claims examiner. He had admitted work injuries to his left knee in 1998 and to his neck and spine in 2000. The knee injury caused 27 percent permanent disability, and both injuries required medical treatment. For a time, the defense authorized the Duragesic fentanyl patches and Norco that his treating physician, Dr. Douglas Grant, prescribed for his pain.

In June 2013, Dr. Grant asked to refill both. Utilization review, the defense-side medical check on requested treatment, approved the Norco and conditionally refused the patches. The reviewing physician wanted more: why the patches over other medications, what Torres had tried before and recent lab results if available. The reviewing physician wrote that it had not been received, called the refusal “an administrative action taken to comply with regulatory time frame constraints,” not a denial based on medical necessity, and said the request would be reconsidered once the information came in.

Torres applied for IMR in August 2013, and his lawyer sent the review organization another report from Dr. Grant about his history with the patches. The November 12 determination came back with a conclusion and no explanation: The patches were “not medically necessary and appropriate.” The appeal, filed in December, answered that the reviewer “failed to review documents submitted by applicant and applicant’s representative before making the determination.” That was the accusation Torres wanted a judge to examine.

A signature and a verification do different jobs

Torres’s appeal had his lawyer’s signature. What it lacked was an oath. A signature shows who is presenting a paper. A verification is a statement under penalty of perjury that the paper’s contents are true. Labor Code section 4610.6(h) allows an IMR determination to be reviewed “only by a verified appeal,” and Torres’s appeal included no affidavit from him or his lawyer verifying its contents.

The Board’s petition rule at the time, Rule 10450, demanded verification “in the manner required for verified pleadings in courts of record” and made the failure a valid ground for summary dismissal. Code of Civil Procedure section 446(a), which the Board quoted, looks first to the party. As quoted, it let a lawyer verify only in limited situations, such as when the party was absent from the county where the lawyer had an office or the facts were within the lawyer’s knowledge, and the lawyer had to say why the party had not done it. Even then, the pleading did not otherwise count as an affidavit establishing the facts.

The Board refused to treat this as paperwork. Verification, it wrote, is “more than a pro forma requirement.” An oath helps keep a pleading’s facts accurate, and it may supply evidence needed for the relief requested. It also has teeth: Willfully swearing to a material fact known to be false is perjury and can bring prosecution and sanctions. Other workers’ compensation documents carry their own verification requirements, the Board added, including physicians’ medical-legal reports and bills and vocational experts’ reports. A missing verification on those may be handled the same way.

The sworn hearing request was a separate paper

Someone did swear to something that day. Torres’s lawyer also filed a Declaration of Readiness to Proceed, or DOR, asking for an expedited hearing. That document was made under penalty of perjury and repeated the complaint that the reviewer had not looked at submitted documents.

You might think that settled it. But Torres never argued that it satisfied the verification requirement for his appeal, and the Board noted that a DOR is not a “petition” as its rule used that word. The two papers still do different work: WCAB Rule 10575 now requires the petition to state the grounds for challenging the IMR determination, and it separately provides that the petition goes on calendar only if a DOR is filed.

The objection came at the hearing, and no correction followed

The defense flagged the problem at the January 9, 2014 expedited hearing: “It is not verified as required under the Labor Code.” The judge dismissed the appeal on February 18. Torres did not try to correct the defect before the dismissal, and by the time the Board ruled he still had not.

His petition for reconsideration asked the Board to look past the defect. It said “the parties all know” that the review decisions were defective, that the person who asked for review had gone through the file and the evidence, and that justice and equity favored reaching the merits. The Board answered that even if all of that was true, the requirement was plainly stated in the statute and the rule. Familiarity with a file does not put anyone under oath about what an appeal says.

A missing verification, the Board explained, does not require automatic dismissal. Failing to correct it within a reasonable time after notice does allow dismissal. The Board drew that rule from the way unverified petitions for reconsideration are handled. Torres had notice from the hearing and filed no correction, so the judge’s dismissal had support.

Why the Board still gave him another chance

The Board rescinded the dismissal anyway, for two reasons. The verification requirement in section 4610.6(h) was “relatively new” in 2014. And California has a strong public policy favoring decisions on the merits, consistent with the Board’s constitutional mandate to “accomplish substantial justice in all cases.” It called this the appropriate course “under these circumstances.”

That first reason belonged to its moment. The requirement has been on the books for more than a decade now. A worker appealing today should have the appeal verified when it is filed.

What Torres had to file, and what would follow

Torres got 20 days and two ways to comply. He could file an appropriate verification, or an amended appeal with the necessary verification, within 20 days after service of the Board’s decision. If he did, the judge should address the substance of his IMR appeal. If he did not, the judge may again dismiss it.

The formal order rescinded the February 18 dismissal and returned the case for further proceedings and a new decision. The merits of his IMR appeal would be reached only if he filed a timely cure.

A cure would have opened review of the appeal, not a prescription. Under section 4610.6 as it now reads, an IMR determination is presumed correct and can be set aside only by clear and convincing proof of one of five listed grounds. If a determination is reversed, the dispute goes back for review by a different IMR organization or, if none is available, a different reviewer. A judge cannot substitute a contrary medical-necessity decision. Our guide to factual errors in an IMR denial explains how one of those grounds works.

The 20 days were not the deadline to appeal

The 20-day period ran from service of this Board decision and applied only to correcting this defect. The original time to appeal an IMR determination is a separate question, and it did not decide Torres’s case. The date the IMR determination was mailed to him was unknown, so the judge withdrew his initial finding that the appeal was late. Our Matute analysis explains how mailing and service affect that original deadline.

What to check if your IMR appeal is challenged

• The appeal as filed. Look for a signature and, separately, a statement under penalty of perjury covering the appeal’s contents. Note who made it. Rule 10575 also requires the petition to set out its grounds in full and treats objections left out as waived, so check what the appeal actually says.
• The hearing request. Read it alongside the appeal. Torres’s sworn hearing request did not help him, and he never argued that it could.
• The objection. Find when the missing verification was first raised, whether at a hearing, in a written response or in a ruling. A reasonable time to correct it is measured from notice.
• The correction. If none has been filed, ask promptly whether one can be and in what form. Torres’s order allowed a verification or an amended verified appeal. Your order may say something different.
• The order and its proof of service. When a period to cure runs from service, that record fixes the starting date.

For representation in a workers’ compensation medical dispute, see our California workers’ compensation practice.