In Dubon II, the Appeals Board agreed that a utilization review (UR) decision is invalid if it is untimely, but further held that all other disputes concerning a UR must be resolved by Independent Medical Review (IMR). (Dubon v. World Restoration, 79 CCC 1298 (En Banc Decision).) In Dubon II, the Appeals Board held in pertinent part that where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment, even if the UR process did not fully comply with section 4610’s requirements. If it is determined by IMR that the requested treatment is not medically necessary, an appeal of that IMR decision may only be taken pursuant to section 4610.6(h).
The timeliness of the IMR was recently addressed in Saunders v. Lorma Linda University Medical Group(ADJ8107354)(Saunders II)(June 10, 2015). In Saunders II, the WCAB rescinded its prior finding on the admissibly of an IMR decision by focusing on time lines. Under Saunders II, if the IMR decision is untimely pursuant to Labor Code section 4610.6(d), the medical dispute is no longer covered by the IMR process and it may be decided by a Workers’ Compensation Judge at an expedited hearing.
The time lines for IMR are outlined in the Labor Code and California Code of Regulations. Labor Code section 4610.6(d), specifics that IMR shall complete its review and make its determination within 30 days of the receipt of the request for review and supporting documentation. California Code of Regulations section 9792.10.5(a)(1) orders that the claims adjuster shall provide all relevant documentation to IMR within 15 days after the IMR assignment. Therefore once an IMR is assigned, an IMR decision must issue within 45 days.
Given that IMR is performed by a government agency, we all know that such time lines will likely never be met. (We’ve all experienced the delays in obtaining a panel list of QMEs from the Medical Unit). The WCAB in Saunders II recognizes that mandatory statutory deadlines imposed on a government agency which do not include a remedy for missed deadlines are to be construed as directory rather than mandatory. However, case law has shown that when the statute in question is intended for the protection of citizens, the statute once again becomes mandatory.
As for IMR, the Labor Code and regulations do not provide any remedy if IMR is untimely. Therefore the question is whether these deadlines are mandatory or directory. In Saunders II, the WCAB determined the purpose of the time frames for completion of IMR are to protect injured workers by requiring a prompt determination of medical treatment disputes. As such, these time frames are mandatory. Accordingly, it is the mandate of the WCAB to enforce a complete system of workers’ compensation including medical treatment to expeditiously accomplish substantial justice. As such, the WCAB in Saunders II confirmed the issue of timeliness of an IMR decision, just like the timeliness of a UR decision, is a legal dispute within the jurisdiction of the WCAB. The medical treatment request at issue would be subject to an expedited hearing. The WCAB is bound by the same statutory standards as the IMR medical professionals in deciding whether medical treatment should be provided. If the proposed medical treatment is supported by substantial medical evidence, it will be granted.
The WCAB, in its attempt to speed up medical determinations, has ultimately created even further delays. The Sauders II decision has now opened the door to allow applicants a third attempt to overturn a UR denial through expedited hearings. Now a timely UR denial followed by an untimely IMR upholding will now turn into an expedited hearing on the issue. It then becomes the responsibility of our Workers’ Compensation Judges to fill the role of doctors and determine whether they believe a medical treatment request is supported based on the medical evidence.
IMR is hardly ever timely and there is nothing we can do to force IMR to move quickly. Despite all efforts to comply with UR time lines, we are still subject to the delay and cost of WCAB review when IMR fails to issue a timely response. The Saunders II decision will further delay medical treatment, increase litigation costs and backlog the WCAB with expedited hearings.