The parties stipulated that Norberto Arredondo sustained industrial injury to his back and psyche with a need for future medical treatment. Applicant’s primary treating physician, Daniel Capen, M.D., submitted requests for authorization to defendant for medications, a back brace, and eight sessions of physical therapy. The State Fund timely conducted UR and notified applicant and his physician that UR denied certification for the requested medications. The UR notice further advised that the requested back brace and physical therapy were “conditionally non-certified” because the UR reviewer did not receive information requested from Dr. Capen.

Applicant appealed the UR determination by requesting IMR. Before the IMR determination issued, applicant filed a Declaration of Readiness to Proceed to Expedited Hearing requesting an award of the medication prescribed by Dr. Capen. Later, the IMR determination issued, upholding the UR non-certification of the requested medications. Applicant contended that the IMR determination was invalid because it did not issue within the time described in section 4610.6(d), and for that reason the treatment request was subject to determination by the WCAB.

The issue framed at the hearing was “Does the WCAB have jurisdiction to determine a medical treatment dispute where the IMR/administrative director has failed to issue a determination within the statutory 30 days where the Applicant filed a DOR but not a verified appeal per Labor Code Section 5 4610.6?”

Following the trial, the WCJ concluded that the IMR determination was valid and the WCAB had no authority to determine the medical treatment dispute. The applicant filed a Petition for Reconsideration. The WCAB upheld the decision in the split panel decision of Arredondo v Tri-Modal Distribution Services, SCIF.

Although the WCJ misconstrued section 4610.6( d), he correctly concluded that the IMR determination in this case is valid. IMR is governmental action and the timeframes set forth in section 4610.6(d) are directory and not mandatory. Under that section the 30 day period does not begin to run until “receipt of the … supporting documentation.” Thus, the time allowed from the date a request for regular IMR review is received to the date an IMR determination issues under the AD Rules is 45 days because 15 days are allowed for submission and receipt of supporting documentation.

The WCAB also did not agree with the WCJ’s statement in the Report that an employee may appeal an IMR determination that has not yet issued pursuant to section 4610.6(h)(l).3 This is because section 4610.6(h) plainly provides for review of an IMR determination after it has issued. It does not describe any grounds for appeal before an IMR determination issues.

The Legislature charged the AD with the responsibility of conducting IMR. In this way, IMR is distinctly different than UR, which a defendant is obligated to perform within the statutory and regulatory framework. As designed by the Legislature, IMR is governmental action that occurs under the auspices and control of the AD. The AD contracts with the IMR organization to “conduct reviews” and to “assist the division [of workers’ compensation] in carrying out its responsibilities.” The IMR organization and medical professionals who are “retained to conduct reviews shall be deemed to be consultants” who assist the AD in performing IMR. Services provided by the IMR organization are specifically declared by the Legislature to be a “state function” as described in Government Code section 19130(b)(2). The fact that IMR is governmental action is significant in considering the effect of the time provisions for completion of IMR that are contained in section 4610.6(d). This is because it has long been recognized that statutory provisions that guide governmental action in the conduct of business, and which do not limit its power or render its exercise ineffectual if the requirements are not met, are intended to provide “order, system, and dispatch in proceedings” and as such, “are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated.” However, the Legislature implemented no provision for invalidating IMR if a determination does not issue within the section 4610.6( d) timeframes.

Commissioner Sweeney dissented from the opinion. In her view the “time requirements of section 4610.6(d) must be construed as mandatory in order to uphold the basic constitutional and statutory provisions of workers’ compensation law that require prompt provision of medical care.” As with an untimely UR, the issue of timeliness of an IMR determination is a legal dispute that is within the jurisdiction of the WCAB.