MICHAEL SULLIVAN & ASSOCIATES BLOG

Labor Code § 4610(l) allows an employer to defer conducting utilization review (UR) of a request for medical treatment "while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062." Former California Code of Regulation (CCR) 9792.9.1(b) and new CCR 9792.9.2(a), effective April 1, 2026, state that a request for authorization "may be deferred if the claims administrator disputes liability for either the occupational injury for which the treatment is recommended or the recommended treatment itself on grounds other than medical necessity." That procedure protects defendants from having to immediately determine the medical necessity of treatment for a potentially nonindustrial condition.

Effective April 1, 2026, the Division of Workers’ Compensation (DWC) adopts a comprehensive and extensive set of new regulations governing utilization review (UR), independent medical review (IMR) and physician reporting. The regulations are available on the DWC's rulemaking page.

The changes are primarily driven by the legislative mandates of Assembly Bill (AB) 1124 and Senate Bill (SB) 1160, which were enacted to address complaints of excessive UR delays and denials. The overarching goals of the new regulations are to align the review process with SB 1160 and AB 1124, and to improve the process of the delivering medical treatment within workers’ compensation.

Labor Code § 4062.2 establishes the rules for requesting a panel of qualified medical evaluators (QMEs) when an employee is represented by an attorney. After a panel is obtained, LC 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." The statute does not describe the appropriate method for exercising a strike, but it adds, "The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process." Although the administrative director has adopted regulations related to the QME selection process in the California Code of Regulations (CCR) 29 et seq, none of the regulations discusses the striking process.

Labor Code § 4062.2 establishes the rules for requesting a panel of qualified medical evaluators (QMEs) when an employee is represented by an attorney. After a panel is obtained, LC 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." The statute does not describe the appropriate method for exercising a strike, but it adds, "The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process." Although the administrative director has adopted regulations related to the QME selection process in the California Code of Regulations (CCR) 29 et seq, none of the regulations discusses the striking process.

The physician-patient privilege is not absolute in workers' compensation, but neither is a defendant's right to discovery. Although filing a claim waives the privilege for conditions placed at issue, foundational cases, such as Allison v. WCAB, 72 Cal. App. 4th 654, established that this waiver does not grant defendants unfettered access to an applicant's entire medical history. That creates a constant tension between an applicant's constitutional right to privacy and a defendant's right to relevant information.

Two recent panel decisions from the Workers' Compensation Appeals Board (WCAB), Williams v. Chino Valley Independent Fire District, 2025 Cal. Wrk. Comp. P.D. LEXIS 339 and Tran v. UL, LLC, 2025 Cal. Wrk. Comp. P.D. LEXIS 340, provide a practical roadmap for navigating this complex terrain. Read together, they act as a clear warning against overbroad discovery tactics while simultaneously affirming a defendant's right to relevant discovery through the power of a well-crafted protective order to obtain necessary, sensitive information.

The scope of California's jurisdiction over cumulative trauma claims filed by professional athletes has long been a contentious issue. California workers' compensation laws are generally more liberal than laws in other states. So professional athletes commonly file workers' compensation claims in California, even when they have a limited connection to the state and have long histories of playing for out-of-state teams.

In 2013, the Legislature passed AB 1309, which amended Labor Code § 3600.5 to limit workers' compensation claims in California by out-of-state professional athletes. The bill was intended to address a loophole in the California workers' compensation system that was deemed to be detrimental to state interests and to its sports teams. Specifically, as a result of the "last employer over which California has jurisdiction" rule, California teams were facing cumulative injury claims from players with extremely minimal California contacts, but substantial playing histories for teams in other states. In addition, out-of-state sports teams were having claims filed against them in California, resulting in several consequences including: (1) clogging the WCAB with cases that should be filed in another state, thereby delaying cases of California employees; (2) forcing insured California employers to absorb rapidly escalating costs being incurred by CIGA; and (3) increasing pressure on insurers to raise workers' compensation rates in California to cover the rising and unanticipated costs.

In an important development, the well-known Patterson case has been reversed by a Court of Appeal. Patterson is the significant panel decision that held that certain types of continuing care were not subject to utilization review (UR) and independent medical review (IMR). This decision, Illinois Midwest Insurance Agency LLC v. WCAB (Rodriguez) has held that the Patterson reasoning was inapposite of the statutory language, and has subjected continuing care to UR/IMR.

BACKGROUND

With the enactment of Senate Bill 863 in 2012, the California Legislature established the independent medical review (IMR) process. It became effective for all treatment requests Jan. 1, 2013. The IMR process replaced judicial review as the method to appeal UR decisions regarding all proposed medical care. Under the statutory scheme, all proposed medical care is to be requested by a physician submitting a request for authorization (RFA). That request is reviewed by UR, and may be appealed only to IMR. Judicial review of such care for reasonableness was no longer allowed (later case law established the sole exception — being for late UR).

California Code of Regulations, Title 8, § 30 establishes the process by which a party may request a panel of qualified medical evaluators (QMEs) from the DWC Medical Unit. CCR 30(b) applies when an employee is represented by an attorney. It requires a party requesting a panel to provide specified information, including the claim number.

Previously, the Workers’ Compensation Appeals Board (WCAB) has been inconsistent as to whether a party's failure to provide the correct claim number renders a panel request invalid. In Sidahmed v. Alameda County Counsel, 2024 Cal. Wrk. Comp. P.D. LEXIS 103, the WCAB held that a defendant's failure to provide the correct claim number rendered its request for the issuance of a panel of QMEs void ab initio. But later, it held in Salamat v. SBM Site Services, 2025 Cal. Wrk. Comp. P.D. LEXIS 28, that an applicant's request for a panel was not invalid, even though she mistakenly listed a specific injury claim number on the panel request rather than the intended cumulative injury claim number, stating, "To find otherwise would place form over substance."