In 2004 and 2012 the California Legislature enacted reforms to streamline the medical treatment approval process for workers’ compensation claims. The most significant of the 2012 reforms was California Senate Bill 863, which created California Labor Code section 4610.6. The section permits an injured worker to seek an independent medical review (“IMR”) of an employer’s utilization review (“UR”) denial of prescribed medical treatment. Section 4610.6(d) provides that the organization conducting the IMR “shall complete its review and make its determination in writing . . . within 30 days of the request for review and supporting documentation, or within less time as prescribed by the administrative director.” (Emphasis added).
On June 22, 2016, the Court of Appeal for the Second Appellate District in a holding of first impression determined that the 30 day time limit in section 4610.6(d) is “directory” rather than “mandatory” and that an IMR decision issued after 30 days is still binding and enforceable.
The case, California Highway Patrol v. WCAB and Dorothy Margaris (“Margaris) (W.C.A.B. No. ADJ9397913), involved Dorothy Margaris, a CHP employee. Ms. Margaris asked CHP’s insurance carrier to authorize a lumbar epidural injection to treat her injured left foot and lumbar spine. After review through its UR plan, the insurer denied the requested treatment and Ms. Margaris sought IMR. The authorized reviewer, Maximus, issued an IMR determination denying the proposed medical treatment. The IMR report was issued 43 days after the initial date of submission. Ms. Margaris argued that the report was 13 days late, and therefore invalid and not binding. She claimed she was therefore allowed to have a workers’ compensation judge review the decision. At trial the WCJ agreed that the IMR was late, but denied the treatment, because an untimely IMR determination does not grant jurisdiction to the WCAB to decide the treatment issue. The injured worker sought reconsideration and the WCAB approved the treatment, finding that there was jurisdiction to adjudicate the need for treatment when the IMR is late.
The Court of Appeal agreed to review the decision to resolve whether the language in the section was “directory ” or “permissive.” If the conduct required by a statute is “mandatory-directory,” a party’s failure to act within the time guidelines of the statute invalidates any subsequently taken action. By contrast, where the statute is determined to be “mandatory-permissive,” the party’s failure to comply with the statute’s time deadlines do not void subsequent action.”
Here, the Court of Appeal found that while it was obligatory for Maximus to issue an IMR report, strict adherence to the statute’s time limits were not mandatory. Supporting its reasoning the Court pointed to the absence in the statute of any type of penalty for failing to comply with the 30 day limit for issuing a report. The Court also emphasized that the section was intended to ensure that an injured worker received “prompt” treatment and to avoid prolonged litigation over the appropriateness of treatment. If the IMR report was invalidated because it was late, the process of determining whether an injured employee was entitled to treatment would be delayed and would result in the employee not receiving treatment.
The Court also rejected Ms. Margaris’ contention that unless the 30 day time period was strictly enforced, and she was allowed to seek approval for treatment from the WCAB appeal board, she would be left in “limbo” without access to needed treatment. The Court held that Ms. Margaris was not left without a remedy and could seek a writ of mandate under Code of Civil Procedure section 1085 to compel the issuance of an IMR determination.
It is generally believed that other Applicants will be taking this issue up on appeal and that this case or another will reach the California Supreme Court for a final determination.
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