California: Untimely Independent Medical Review

Split WCAB panel finds untimely IMR, like untimely UR, is invalid

In Saunders v. Loma Linda University Medical Group, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, rescinded its prior decision [see Saunders v. Loma Linda Univ. Med. Group, 2014 Cal. Wrk. Comp. P.D. LEXIS 659 [2014 Cal. Wrk. Comp. P.D. LEXIS 659] (Appeals Board noteworthy panel decision)] in which it found that the WCJ had no jurisdiction pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 [79 CCC 1298] (Appeals Board en banc opinion) (Dubon II), to award medical treatment which had been denied by timely utilization review (UR).

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The majority WCAB panel held that the independent medical review (IMR) determination that issued following the applicant’s appeal from UR appeared on its face to be untimely under Labor Code § 4610.6(d) [LC 4610.6], and that untimely IMR, like untimely UR, is invalid such that the WCJ has jurisdiction to decide the medical treatment dispute based on substantial evidence.

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 timeframes for completion of IMR, which require prompt provision of medical care to injured workers. The panel reasoned that such construction is consistent with the plain and mandatory language in Labor Code § 4610.6(d), which states that the IMR organization shall complete IMR within specified time frames, and with the application of other time periods in Labor Code §§ 4610.5 [LC 4610.5] and 4610.6. According to the panel, that same remedy should be applied to untimely IMR as it is applied to untimely and invalid UR pursuant to Dubon II, and that there is no basis for construing timeframes applicable to injured workers and claims administrators with respect to UR as mandatory while making timeframes applicable to Administrative Director for issuance of IMR determinations directory.

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 timeframes 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 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, 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 an 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, Labor Code § 4610.6(d) timeframes are directory and not mandatory.

COMMENTARY:

Several weeks ago, this newsletter discussed a noteworthy WCAB panel decision by the name of Arredondo v. Tri-Modal Distribution Services, Inc. In Arredondo, a split panel of commissioners held that the timeframes applicable to IMR decisions described in Labor Code section 4610.6(d) were directory and not mandatory. This meant that even if the IMR decision was issued months late, it was still valid. This case basically meant that a challenge to an IMR decision was limited to the grounds for appellate review available under Labor Code Section 4610.6. In other words, unless you could prove that the concealed IMR physician maintained some type of bias or held some type of conflict of interest, there was really no way to challenge even a very flawed IMR decision.

Saunders, on the other hand, finds that like an untimely UR decision, an untimely IMR is simply invalid. The majority, however, went even further by stating that in those cases where the IMR is untimely, the IMR process no longer covers the treatment dispute and the WCAB can hear the dispute pursuant to Labor Code section 4604 [LC 4604] at a section 5502(b)(1) [LC 5502] expedited hearing.

Thus, you have one group of commissioners that want to protect the integrity of the IMR process by not upholding grounds that could be used to invalidate it. You have another group of commissioners who have no problem invalidating an IMR decision and having that issue decided by the WCAB. These are two very different perspectives on how the medical treatment benefit is supposed to work. In Arredondo, Commissioner Zalewski wrote the majority decision while in Saunders, Commissioner Sweeney did. While Chairwoman Caplane joined Commissioner Sweeney in Saunders, Commissioner Lowe joined Commissioner Zalewski in Arredondo. Given the significant discrepancy in these two groups’ view of things, it is likely that the issue will ultimately have to be decided by the appellate courts.

Read the Saunders noteworthy panel decision (June 10, 2015).

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