Is an untimely IMR determination grounds for an appeal of the IMR determination?
That was the issue in Norberto Arredondo v. Tri-Modal Distribution Services and SCIF.
In a 2-1 decision authored by Commissioners Zalewski and Lowe (with a dissent from Commissioner Sweeney), the answer is no.
The applicant contended that the IMR determination did not issue within the time specified in Labor Code 4610.6(d) and that therefore the WCAB had jurisdiction to determine the medical dispute.
In Arredondo, the trial judge had ruled that the IMR determination was valid and that the WCAB had no authority to rule on the medical issues.
The analysis by the WCAB majority discusses whether the IMR time frame is “directory or mandatory”.
Zalewski and Lowe reject the contention that untimeliness is a basis for appealing the IMR determination and conclude the time frame for IMR determination is directory rather than mandatory.
In dissent, Sweeney argues that treatment delayed is treatment denied. She cites the California constitution, Dubon II and the Sandhagen case in arguing that the time requirements of Labor Code 4610.6 are mandatory.
This case is likely to go to the Court of Appeal.
Here is a link to the Arredondo case:
Julius Young
510.835.8870