Attorney David Tous Defends Injured Workers’ Rights to Due Process

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Workers’ comp attorney David Tous, in light of a WorkCompCentral article about the California Supreme Court declining a review, stating that the Independent Medical Review process is unconstitutional, illustrates why injured workers are not being afforded due process.

David Tous

We estimate that over 90% of the IMRs that we file result in Maximus upholding the initial determination, resulting in our clients not receiving their prescriptions or procedures that are necessary.

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According to the February 23, 2016, WorkCompCentral article, the 1st District Court of Appeals (Case no. WCAB No. ADJ1526353) determined the Independent Medical Review (IMR) process does not violate an injured worker’s due process rights under the U.S. Constitution. Furthermore, it stated the process for evaluating workers’ treatment requests is “fundamentally fair and affords workers sufficient opportunities to present evidence and be heard.”

California’s workers’ compensation system uses IMR to help resolve disputes about the medical treatment of injured employees. However, a request for medical treatment in the workers’ compensation system must first go through a Utilization Review (UR) process from a physician reviewer to confirm that it is medically necessary before it is approved. If a treating physician’s request for medical treatment is denied or modified by the physician reviewer, the injured employee can ask for a review of that decision through an IMR, which is in essence an appeal.

A company named Maximus has the exclusive government contract to perform each and every IMR, and its decision is final and binding. Additionally, Maximus does not reveal the identity of the physician performing the IMR. As such, the injured worker does not know if the physician performing the review has the appropriate qualifications and is in the correct specialty to make such determinations.

“We estimate that over 90% of the IMRs that we file result in Maximus upholding the initial determination, resulting in our clients not receiving their prescriptions or procedures that are necessary,” said Tous, of Tous Law Group. “We receive the IMR from Maximus indicating that they upheld the UR determination, but we do not know the name or specialty of the physician, and do not have any verification that the IMR was actually performed by a physician, let alone a physician qualified and in the same specialty as the doctor submitting the RFA.”

If overruled, the injured worker gets the prescription or procedure, and it is final and binding. Unfortunately, this only happens in approximately 10% of cases. Furthermore, there is no opportunity to depose the doctor in the current IMR process.

“We cannot schedule a deposition of the doctor, as we do not know his or her name, or if they are even a physician,” said Tous. “This is why we feel the process is unconstitutional and doesn’t offer due process for the injured worker.”

About Tous Law Group, LLC
Workers’ compensation attorneys at the Tous Law Group have decades of combined experience helping injured workers throughout California. They know how the insurance companies handle claims and how defense teams are likely to approach a case. For more information, please call (714) 602-4473, or visit The law office is located at 151 Kalmus Drive, Suite M-1, Costa Mesa, CA 92626.

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