California: Untimely Independent Medical Review – Southard Decision

This case is very similar to the Saunders noteworthy panel decision.

In Southard v. Hallmark Greeting Cards, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, rescinded the WCJ’s finding that an employee may appeal an independent medical review (IMR) determination pursuant to Labor Code § 4610.6(h)(1) if the IMR determination is issued beyond the time frames set forth in Labor Code § 4610.6(d), and held instead that the IMR determination must issue within the time frames established by Labor Code § 4610.6(d). If it does not issue within those time frames, the medical treatment dispute is no longer covered by the Labor Code § 4610.5 utilization review (UR)/IMR process and the dispute may be decided by the WCJ pursuant to Labor Code § 4604 based upon substantial evidence and whether the treatment is supported by the Medical Treatment Utilization Schedule (MTUS) or otherwise.

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, as well as the purpose of the timeframes for completion of IMR, which require prompt provision of medical care to injured workers.

The majority panel reasoned that such construction is consistent with the plain and mandatory language in Labor Code § 4610.6(d) stating that the IMR organization shall complete IMR within specified time frames, with the legislative intent of establishing mandatory timeframes, and with the application of other time periods in Labor Code §§ 4610.5 and 4610.6.

According to the majority, the purpose of bringing about recovery as soon as possible is frustrated if the time periods in Labor Code § 4610.6 are construed to be directory rather than mandatory because the provision of necessary treatment to the injured worker is delayed if IMR is not concluded within the specified time period. Furthermore, the same remedy should be applied to the untimely IMR as is applied to untimely and invalid UR pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II). The majority pointed out that 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 issuance of IMR determinations directory frustrates the policy of “liberal construction” in Labor Code § 3202.

Commissioner Zalewski, dissenting from the majority opinion, concluded that the IMR determination in this case is valid even if it did not issue within the time frames in Labor Code § 4610.6(d). Commissioner Zalewski 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 MTUS and other recognized standards of care, (2) the 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 the statutory and regulatory framework, (3) the Legislature provided guidelines in Labor Code § 4610.6(d) 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) untimeliness is not listed as a ground for IMR appeal in Labor Code § 4610.6(h), and (5) given the expressed legislative intent and statutory design of IMR, the Labor Code § 4610.6(d) timeframes are directory and not mandatory.

Read the Southard noteworthy panel decision (June 25, 2015).

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