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Workers' Compensation

Arredondo: Is the Timeliness of the Independent Medical Review Decision Irrelevant?

Has the pendulum swung so far that the emphasis now is completely on the process itself and not the purpose of the process?

In Arredondo v. Tri-Modal Distribution Services, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS --, the California WCAB, in a split panel opinion, affirmed the WCJ’s finding that the WCAB lacked jurisdiction to review a timely utilization review (UR) non-certification of requested medical treatment based on the Administrative Director’s alleged failure to complete independent medical review (IMR) in a timely manner.

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The majority of the WCAB panel concluded that, although the WCJ misconstrued Labor Code § 4610.6(d) [LC 4610.6] in finding that IMR must issue within 30 days of receipt of the request as he did not account for the extra 15 days allowed to provide supporting documentation to the IMR organization, the WCJ correctly found that the IMR determination was valid even if it did not issue within the statutory timeframes.

The WCAB reasoned that (1) the Legislature requires medical treatment disputes to be evaluated through IMR in order to assure that medical necessity is objectively and uniformly determined based on the Medical Treatment Utilization Schedule (MTUS) and other recognized standards of care; (2) an IMR determination is a governmental action performed under the auspices and control of the Administrative Director, and is distinctly different from UR where the defendant is obligated to perform within a statutory and regulatory framework; (3) the Legislature provided guidelines in Labor Code § 4610.6(d), which are administrative in nature, addressing when the IMR determination should issue, but it enacted no provisions that invalidate the IMR determination if the determination is not made within the Labor Code § 4610.6(d) timeframes; (4) given the statutory design of IMR, Labor Code § 4610.6(d) timeframes are directory and not mandatory, and, therefore, the IMR determination is valid even if it does not issue within the specified timeframes; (5) untimeliness is not listed as a ground for an IMR appeal in Labor Code § 4610.6(h); and (6) because no grounds for appeal of an IMR determination under Labor Code § 4610.6(h) were established at trial, the IMR determination in this case was final and binding on the applicant.

Commissioner Sweeney, dissenting from the majority panel, concluded that the time requirements in Labor Code § 4610.6(d) must be construed as mandatory in order to uphold the basic constitutional and statutory provisions of workers’ compensation law that require prompt provision of medical care. Commissioner Sweeney opined that such construction is consistent with the mandatory language in Labor Code § 4610.5(d) [LC 4610.5] stating that the IMR organization shall complete IMR within the specified time frames, and with the application of other time periods in Labor Code § 4610.6(d), that same remedy should be applied to an untimely IMR as is applied to an untimely and invalid UR pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 [79 CCC 1298] (Appeals Board en banc opinion) (Dubon II). As explained by Commissioner Sweeney, there is no basis for construing the timeframes applicable to injured workers and claims administrators with respect to UR as mandatory while making the timeframes applicable to the Administrative Director for the issuance of IMR determinations directory. If the IMR organization does not issue a determination within the times mandated by Labor Code § 4610.6(d), the medical treatment dispute is no longer covered by the UR provisions in Labor Code § 4610.5 and, as such, medical necessity should be determined by the WCAB based upon substantial evidence.

Commentary:

It is common knowledge among participants in the workers’ compensation system that it can take up to six months or more to obtain an IMR decision from Maximus. Many workers’ compensation judges have concluded that the Administrative Director’s adoption of an untimely IMR (Labor Code Section 4610.6(d) and Administrative Director (AD) Rule 9792.10.5(a)(1) [R 9792.10.5]) constitutes a valid ground for appealing the IMR determination pursuant to Labor Code Section 4610.6(h)(1). The effect of the majority’s decision in Arredondo is to remove this argument, making the timeliness of the IMR decision irrelevant.

The grounds for challenging the AD’s decision on medical disputes is now even more limited. Indeed, if the timeliness of the decision is irrelevant, can an employee prove that the AD’s decision, which is based on a concealed physician, was procured by fraud, the result of some conflict of interest or bias? Even the last basis of appeal provided for in Labor Code Section 4610.6(h)(5), that section referring to plainly erroneous express or implied findings of fact not otherwise the matter of expert opinion, is so poorly articulated and convoluted that it appears the drafters may have been in agony at the very thought of giving the employee any hope of due process in these disputes. It is very easy to argue that SB 863 created a binding, non-judicial, process of resolving medical treatment disputes wherein the AD has the ultimate and only authority.

Before IMR, judicial authority over medical necessity disputes was with the WCAB under Labor Code Section 5300(a) and (b) [LC 5300], and the following language of Labor Code Section 5301 [LC 5301]: “The appeals board is vested with full power, authority and jurisdiction to try and determine finally all the matters specified in Section 5300”. In providing that UR “may be reviewed or appealed only by” IMR (Labor Code Section 4610.5(e)), the Legislature made the AD the only “tribunal” that is empowered to adjudicate medical necessity. “In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization”. (Labor Code Section 4610.6(i)).

In conclusion, the California Constitution Article XIV, § 4 [Cal. Const. Art. XIV § 4], vested the Legislature with the plenary power to create a complete system of workers’ compensation including a full provision of such requisite medical care necessary to cure and relieve an industrial injury. Article XIV, § 4 mandated that the system created by the Legislature include a dispute resolution process aimed at accomplishing “substantial justice in all cases”. Cases like Arredondo make many wonder whether IMR is nothing more than a conclusive process with no meaningful judicial or appellate review. Ultimately, whether IMR includes adequate provisions for review and whether the process is consistent with the California Constitution will have to be resolved by the courts of appeal and likely the California Supreme Court.

Read the Arredondo noteworthy panel decision.

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