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In February 2010 Jack Baker slipped on some tools in a walkway while working as a diesel mechanic for Sierra Pacific and insured by State Compensation. He injured his right knee, neck, left shoulder, and psyche, and received medical treatment.

The PTP prescribed the drugs Pennsaid and Norco for Baker in February 2014. UR timely denied the RFA for these drugs on March 12. Baker appealed the UR denial through an IMR by filing an application on March 19, 2014. Maximus did not assign the matter to IMR until June 23, 2014.

After the matter was assigned to IMR, both Baker and Sierra Pacific promptly submitted medical information to Maximus. Maximus issued its final decision on July 21, 2014, finding the prescriptions for Norco and Pennsaid not medically necessary or appropriate.

Baker filed a petition appealing the director’s IMR on August 19, 2014. A hearing followed on November 5, 2014. The WCJ in its findings determined: “In this case the delay of 96 days to assign this matter is unreasonable. As the designee of the [director], Maximus’ delay resulted in an act in excess of her powers.” The WCJ continued, “Applicant’s appeal from IMR is granted. He is entitled to a new IMR.” The WCJ ordered the matter remanded to the director for the conduct of a new IMR.

The WCAB granted the appeal on November 26, 2014, finding Baker’s remedy was a new IMR pursuant to section 4610.6, subdivision (i): “Although this seems like a somewhat futile act, in that the substantive decision by IMR was not plainly errant to a lay person, that is the remedy provided by the applicable law.”

Maximus issued a final determination after the second IMR on February 4, 2015, and upheld the UR denial for the authorization of the medications. Baker again appealed the IMR decision. The WCJ concluded that since this is a matter of conflicting medical opinions applicant has not met his standard of proof for his appeal. The WCJ did not discuss the timeliness of the decision.

Baker filed a petition for reconsideration which the WCAB granted. In its decision after reconsideration, the WCAB determined the time periods set forth in section 4610.6, subdivision (d), are directory not mandatory and failure to meet the time limits did not invalidate the IMR process. The Court of Appeal affirmed in the unpublished case of Baker v WCAB.

The 3rd District Court of Appeal noted that in the recent 2nd District case of State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd.(Magaris) (2016) 248 Cal.App.4th 349, 359 “the appellate court explored this very issue.” Where a government action is mandatory in the obligatory-permissive sense and the government fails to act, the government can be compelled (i.e., mandated) to act in accordance with the statute. But where a government action is mandatory in the mandatory-directory sense and the government fails to act, it effectively loses jurisdiction to act in accordance with the statute.

It concluded “we agree with the Margaris court’s assessment.” The absence of a penalty or consequence for the failure to comply with the 30-day time limit, coupled with the limited grounds for appeal, indicate that the Legislature did not intend to divest the director of jurisdiction to issue an IMR determination after the 30-day window expires.