Is the Labor Code Section 4610.6(d) 30 day time-frame limit during which Maximus “shall” issue an Independent Medical Review determination “mandatory” or “directory”?
That’s been one of the lingering uncertainties some four years after the passage of SB 863. And it’s a question that is at stake in several cases that have been pending at the California Court of Appeal, including Arredondo v. WCAB (which found the time limit directory) and Hallmark Marketing V. WCAB (Southard), which found the time limit mandatory.
But the first Court of Appeal decision on the subject, California Highway Patrol v. WCAB (Margaris), sides with the directory side.
After the passage of SB 863 the volume of IMR requests far exceeded what DWC administrators expected. Significant waits for IMR determinations developed in a number of cases.
Looking at a report titled “2014 Independent Medical Review (IMR) Report: Analysis of 2013 Data”, Figure 3 of the report shows the average number of days to close standard and expedited IMR cases from 1/1/13 to 8/31/14. While that particular chart doesn’t clearly detail whether the metric used was from the IMR assignment to IMR determination or from the submission of records to Maximus to IMR determination, the wait times were significant in any event. From around 30 days in July 2013 it spiked to over 130 days in June 2014 before coming down in August 2014 to slightly over 60 days.
A July 2015 DWC report titled “SB 863: Assessment of Workers Comp Reforms” contains at Figure 7 a graph that gives data on timeliness for the period from September 2014 to May 2015. In September 2014, IMR determinations were on average running 59 days from the receipt of the complete medical record.
This appears to have improved, however, and the DWC report claims that by May 2015 determinations were made on average within 15 days of the receipt of the complete medical record and on average 51 days from the assignment to Maximus. To my knowledge, recent numbers from 2016 aren’t yet unveiled.
It appears that the July 2015 DWC report is the report to which the opinion by the Court of Appeal Second Appellate District Division Three panel (Justices Lavin, Edmon and Aldrich) refers when they opine that ….“Maximus was initially unable to issue timely IMR determinations. However, Maximus has since corrected the issue, presumably motivated, in part by the fact that its contract with the director expires on December 31, 2017, at which time the director could choose not to renew the contract with Maximus.”
I titled this blog post “Hollow Victory”. Why?
First, there should be no celebration by employers or carriers if there are any delays. In Ms. Margaris case the IMR determination was 13 days after the 30-day time frame provided under 4610(d).
I’m not clear what the status of the applicant in Margaris were. But hypothetically, while 13 days is not huge, it would amount to about two weeks of temporary disability that a carrier might be paying out if a worker was still on TTD status. That alone may be over $2,000 while a worker is essentially treating water. And it is two weeks more that worker and doctor are left in limbo, with the worker quite possibly not getting appropriate care.
Second, the whole time frame issue is clouded by an elephant in the room: many carriers have been slow to provide records to Maximus as mandated by the statute. The DWC has been slow to crack down on insurers and TPAs who fail to provide records to Maximus in a timely manner. Again, these sorts of delays can result in higher indemnity payments, delayed return to work, and worker health in limbo. Getting decisions out within the 30 days isn’t much good if it is taking a long time to get the records in the first place.
Third, while the DWC and the claims industry have prevailed in Margaris on the mandatory vs. directory dispute, the practical effect may be small if Maximus is generally in compliance now.
The Court of Appeal did throw a bone to claimants, opening the door for a worker to file a writ of mandate to force timely action by Maximus. I’d expect this to be a very rarely used strategy, given the cost and difficulty of doing this.
There is always a chance that the 3rd DCA could reach a different result in Southard.
Here is the decision in Margaris:
Stay tuned. Within the next week I’ll be posting on the most significant California workers comp developments of the first half of 2016.