California UR/IMR Process: Form Over Substance?

Injured worker’s IMR application denied for being 1 day late

In Avila v. University of California Irvine Medical Center, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s order, which denied the applicant’s appeal of the Administrative Director’s decision that had denied her application for independent medical review (IMR) on the ground that the IMR application was not timely filed.

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As explained by the WCAB, the applicable statutory and regulatory provisions require that an IMR application be received by the Administrative Director within 30 days after service of the utilization review (UR) to the employee as set forth in Labor Code § 4610.5(h)(1) [LC 4610.5]. Such time is extended by five days if the application is timely served by mail pursuant to the provisions of Code of Civil Procedure § 1013(a) [CCP 1013].

Here, the applicant’s application for IMR was required to be submitted and received by the Administrative Director no later than 1/28/2014, but was untimely submitted on 1/29/2014. The February 2014 regulatory amendment to 8 Cal. Code Reg. § 9792.10.1(b)(2) [R 9792.10.1], under which the rule was amended to state that the request for IMR must be “filed” within 30 days instead of “communicated” within 30 days, did not effect a change in the time for requesting IMR, but rather reflected the Administrative Director’s understanding of the intended meaning of the statutory requirement that receipt of an IMR application must be received within the 30-day period and not merely served within that timeframe.

Commissioner Sweeney wrote a separate concurring opinion to reflect her position that the mandatory time limitations on parties participating in the UR/IMR process should apply equally to entities involved in making IMR determinations, and that the same adherence to the statutory time limitations should be applied to the period for the issuance of an IMR determination by the Administrative Director as provided in Labor Code § 4610.6 [LC 4610.6], with the proviso that failure to timely issue the IMR determination will vest jurisdiction in the WCAB to make a determination of the medical treatment dispute. Commissioner Sweeney found that the prompt delivery of reasonable and necessary treatment is undermined if the timeframes in Labor Code § 4610.6 are not construed to be equally mandatory for the IMR organization and Administrative Director as they are for injured workers and claims administrators, and that mandating consistency in the application of all time periods in Labor Code §§ 4610.5 and 4610.6 promotes fairness and expeditious provision of necessary medical treatment to injured workers.

Commentary:

In financial matters, there is a term known as “substance over form”. This term basically means that a transaction should not be recorded in such a manner as to hide the true intent of the transaction. In several recent cases issued by the Workers’ Compensation Appeals Board (WCAB), a different term comes to mind: “form over substance”. There is so much focus on the numerous procedures put in place to administer benefits, or, to put another way, on the form of things, that sight has been lost of the fundamental purpose of workers’ compensation: helping injured workers recover for work related injuries in a cost effective manner so as to allow them to get back to work as quickly as possible.

Whether we are talking about Panel Qualified Medical Evaluator (PQME) procedures, Utilization Review (UR) procedures, or as in this case, Independent Medical Review (IMR) procedures, the focus has become entirely on the process. All of this “process” comes with a cost. The cost of administering benefits has never been higher. Premiums continue to rise. Injured workers continue to be denied legitimate benefits. Maybe it’s time to ask whether the present workers’ compensation process, one that is so weighted down with redundant and expensive procedures, should be taken to the scrap heap so that something more reasonable can be put in its place.

Read the Avila noteworthy panel decision.

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