Both California’s Second District Court of Appeal and the Third District Court of Appeal have granted review of cases that address the issue of whether the 30-day time period for completion of Independent Medical Review (IMR) is mandatory or noncompulsory pursuant to the language in Labor Code Section 4610.6(d).
In California Highway Patrol v. WCAB (Margaris) (B269038), the Second District Court of Appeal case, State Fund attorneys filed their petition for writ of review on December 18, 2015. In the underlying decision on November 13, 2015, the WCAB panel had ruled that IMR time limits were mandatory and that Maximus’ failure to review in 30 days voided the IMR determination. State Fund contends that the Legislature intended for treatment disputes following Utilization Review to be decided by independent medical professionals using uniform, evidence-based treatment standards. State Fund further contends that the entire purpose is defeated if determination is invalid only because additional time was needed. Defendant also points out that the lack of consequence for noncompliance with time provision is an indication that the Legislature intended the 30-day period to be directory and not mandatory.
On January 15, 2016, the applicant’s attorney filed her Answer to Petition for Writ of Review. She argues that construing “shall” as noncompulsory is absurd and that such an interpretation distorts the Legislature’s intent. The Court of Appeal has directed the WCAB to respond to State Fund’s petition by April 20, 2016. The matter is set for oral argument on June 13, 2016.
Southard v. Hallmark Greeting Cards (C079912) is pending before the Third District Court of Appeal. This case appears to be moving more slowly than the Margaris case. It has been pending for almost five months and has not yet been set for oral argument. The July 2015 panel decision from which defendant has appealed was a split opinion. The majority held that the 30-day time period for IMR determinations is mandatory. The dissenting commissioner, however, argued that the 30-day period provision was merely directory. Currently, the WCAB commissioners are split with regard to the 30-day provision and whether it is mandatory or merely directory. For this reason, no en banc decision on the issue is anticipated.
Other decisions, including Arredondo v. Tri-Modal Distribution Services (80 CCC 1050) and Saunders v. Loma Linda University Medical Group (BPD) (43 CWCR145) illustrate the divided opinions of the commissioners on this issue. In Arredondo, it was held that the 30-day time frame in Labor Code Section 47610.6(d) was directory, but not mandatory. But the Saunders panel held that the 30-day period is mandatory and that the WCAB has jurisdiction over the medical treatment issue when the IMR decision is untimely.
The decisions of the Second District and Third District Courts of Appeal may provide uniformity and direction on this issue.
Boehm will keep you posted.
ANGELOTTI CASE UPDATE
The United States Supreme Court ordered the Department of Industrial Relations to file a response by March 18. An order was issued extending time until April 18, 2016 to file a response to the petition.