Daily Blast June 23, 2016

The Court of Appeal, Second Appellate District, Division Three (Los Angeles), issued an opinion in California Highway Patrol v. Workers’ Compensation Appeals Board (June 22, 2016, B269038) __ Cal.App.4th __, analyzing whether the 30-day time period imposed by Labor Code section 4610.6 is mandatory. Interpreting the 30-day time period as mandatory would invalidate a determination made after the 30-day period, thereby vesting jurisdiction in the Workers’ Compensation Appeals Board (“appeals board”). (Slip opn., p. 3.) The Court of Appeal concluded the 30-day time limit is directory, rather than mandatory. Thus, an untimely determination is valid and binding.  (Id. at pp. 3-4.)

A California Highway Patrol (CHP) employee suffered a work-related injury and requested authorization of medical treatment. (Slip opn., p. 3.) The State Compensation Insurance Fund (SCIF) denied the request. The employee sought an independent medical review (IMR) pursuant to section 4610.6, which provides a procedure for an injured worker to challenge an employer’s denial, delay, or modification of a request for proposed medical treatment. (Id. at pp. 3-4.) Section 4610.6, subdivision (d), provides the organization conducting the IMR “shall complete its review and make its determination in writing . . . within 30 days of the receipt of the request for review and supporting documentation . . .” (Id. at p. 3, quoting § 4610.6, subd. (d).) The organization that conducted the employee’s IMR issued its determination upholding SCIF’s denial of the proposed medical treatment, more than 30 days after receiving the medical records for review. (Slip opn., p. 4.) The employee appealed, arguing the IMR determination was invalid because the organization failed to issue it within 30 days. (Id. at pp. 4-5.) An administrative law judge found the determination valid and binding, although late, because “an untimely IMR determination ‘does not confer jurisdiction on the [workers’ compensation judge] to decide any medical treatment issues.’” (Id. at p. 5.) The employee sought reconsideration by the appeals board. (Ibid.) A majority of the three-member panel found the IMR determination invalid. The panel also found the proposed treatment was supported by medical evidence. (Ibid.) The SCIF sought writ review of the appeals board’s decision. (Ibid.)

The Court of Appeal annulled the decision of the appeals board. (Slip opn., p. 24.) The court analyzed the meaning and effect of the word “shall” in section 4610.6, subdivision (d). If “shall” is mandatory, as the appeals board concluded, then an untimely IMR determination is invalid and the appeals board has jurisdiction to determine medical necessity. (Id. at pp. 12, 18.) The court looked to the Legislature’s intent in determining that “shall” as used in section 4610.6, subdivision (d) is directory, not mandatory. (Id. at p. 14.) The court noted “statutory time limits are usually deemed to be directory in the absence of a penalty or consequence for noncompliance.” (Id. at p. 15.) “Neither section 4610.5, which relates to the initiation of IMR, nor section 4610.6, which relates to the execution of IMR, provides any consequence or penalty in the event the IMR organization . . . fails to issue an IMR determination within the 30-day period.” (Id. at pp. 16-17.) Further, the Legislature expressly limited the grounds for appeal, and did not include untimeliness of the IMR determination as one of the grounds. (Id. at p. 17.) Construing the 30-day provision as directory furthers the Legislative intent that independent medical professionals determine the necessity of proposed medical treatment, thus limiting the appeals board’s authority to make decisions about medical necessity. (Id. at pp. 17-18.) Lastly, the Legislature provided that “‘n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.” (Id. at p. 19, quoting § 4610.6, subd. (i).) The court concluded “an IMR determination is valid and binding upon the parties . . . even if that determination is rendered after the 30-day time period provided by section 4610.6, subdivision (d).” (Id. at p. 6.)