The WCAB has issued a number of panel level decisions since SB 863 eroding the jurisdiction of the UR and IMR process for technical mistakes that were claimed to have “invalidated” the process. These cases favored handing the issue of appropriate medical treatment over to the WCJ to decide. As a result UR/IMR seemed to be subjected to a slow death by a thousand such cuts.
However, the trend of erosion of UR/IMR jurisdiction may have suffered a setback at the hands of a June 2016 Court of Appeal published decision that has now been followed in at least one subsequent panel decision.
In the precedent setting case, Dorothy Margaris appealed the IMR determination to the appeals board. She argued argued that the IMR determination was invalid because Maximus failed to issue it within the 30-day time period . The judge agreed the IMR determination was issued 13 days late, but nevertheless found the determination was valid and binding on the parties, concluding that an untimely IMR determination “does not confer jurisdiction on the [workers’ compensation judge] to decide any medical treatment issues.”
A majority of the three-member panel agreed with applicant and went on to find, contrary to the IMR determination, that the proposed treatment was supported by substantial medical evidence and was consistent with the treatment schedule promulgated by the director. One member of the panel dissented, and would have found that the IMR determination, though untimely, was valid and binding on the parties.
But the Court of Appeal intervened, disagreed with the WCAB and reversed in the published case of California Highway Patrol and SCIF v WCAB (Margaris).
The Court of Appeal ruled that the 30-day time limit in section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director. The Court of Appeal interpretation of the statute in this manner is consistent with long-standing case law regarding the mandatory-directory dichotomy, and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges.
Shortly after Magaris was decided, the WCAB reviewed the case of Christopher Tyni v City of Montebello. Tyni sustained industrial injury to his right knee while employed by the City as a Police Officer.
He sought reconsideration of the Findings And Order of the WCJ, who found that the Independent Medical Review (IMR) in this case was “untimely,” but that the untimely IMR determination “does not confer jurisdiction on the WCJ to decide any medical treatment issues.”
The panel affirmed that the “WCAB has no authority to determine the treatment dispute because the time periods for completion of IMR contained in Labor Code section 4610.6(d) are directory not mandatory, and the IMR determination in this case is valid and binding upon applicant even though it issued outside the time described in the statute.1 (California Highway Patrol v. Workers’ Comp. Appeals Board (Margaris) (June 22, 2016, No. B269038) _Cal.App.4th_ [2016 Cal. App. LEXIS 491] (Margaris).”