State Compensation Insurance Fund v. Workers' Compensation Appeals Board ( 2016 )


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  • Filed 6/22/16
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    CALIFORNIA HIGHWAY PATROL, by                      B269038
    and through its adjusting agent, STATE
    COMPENSATION INSURANCE FUND,                       (W.C.A.B. No. ADJ9397913)
    Petitioner,
    v.
    WORKERS’ COMPENSATION
    APPEALS BOARD and
    DOROTHY MARGARIS,
    Respondents.
    ORIGINAL PROCEEDINGS in certiorari. Petition granted; decision of the
    Workers’ Compensation Appeals Board annulled; matter remanded for further
    proceedings.
    Lisa A. Liebson, Deputy Chief Counsel, Mary R. Huckabaa, Assistant Chief
    Counsel and William L. Anderson, Appellate Counsel for Petitioner.
    Finnegan, Marks, Theofel & Desmond, Ellen Sims Langille and
    Randall G. Poppy for California Chamber of Commerce as Amicus Curiae on behalf of
    Petitioner.
    Law Offices of Allweiss & McMurtry and Michael A. Marks for California
    Workers’ Compensation Institute as Amicus Curiae on behalf of Petitioner.
    John F. Shields for Respondent, Workers’ Compensation Appeals Board.
    Law Offices of Jill Suzanne Breslau and Jill Suzanne Breslau for Respondent,
    Dorothy Margaris.
    Law Office of Mark Gearheart and Justin C. Sonnicksen for California
    Applicants’ Attorneys Association as Amicus Curiae on behalf of Respondent,
    Dorothy Margaris.
    _______________________________________
    2
    INTRODUCTION
    In this original proceeding, State Compensation Insurance Fund (SCIF), as the
    adjusting agent for California Highway Patrol (CHP) (collectively, Petitioner), seeks
    review of a decision of the Workers’ Compensation Appeals Board (appeals board)
    regarding the medical necessity of proposed treatment requested by CHP employee
    1
    Dorothy Margaris (applicant). The issue presented relates to Labor Code
    section 4610.6, which the Legislature adopted in 2012 as part of an ongoing effort to
    reform California’s workers’ compensation system. Section 4610.6 created a new
    procedure—independent medical review (IMR)—that an injured worker may use to
    challenge an employer’s timely denial, delay or modification of a request for
    authorization of proposed medical treatment. The Administrative Director of the
    Division of Workers’ Compensation (director) oversees IMR, which is conducted by
    a private organization that retains licensed physicians to review the pertinent medical
    records and issue written determinations regarding the medical necessity and
    appropriateness of proposed medical treatment. The IMR determination becomes the
    final determination of the director by operation of law and may only be appealed on
    limited grounds.
    Section 4610.6, subdivision (d), provides that the organization conducting 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, or within less time
    as prescribed by the administrative director.” (§ 4610.6, subd. (d).) We consider
    whether, as the appeals board concluded in this case, an IMR determination issued after
    the 30-day period is invalid and thereby vests jurisdiction in the appeals board to decide
    whether the proposed treatment is medically necessary and appropriate. Our analysis
    turns, in large part, on whether the language of the statute is mandatory—such that
    1
    All further undesignated section references are to the Labor Code.
    3
    a failure to comply with the statute’s directive renders the resulting governmental action
    invalid—or merely directory.
    We disagree with the appeals board and conclude the 30-day time limit in
    section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR
    determination is valid and binding upon the parties as the final determination of the
    director. Our interpretation of the statute in this manner is consistent with long-standing
    case law regarding the mandatory-directory dichotomy, and implements the
    Legislature’s stated policy that decisions regarding the necessity and appropriateness of
    medical treatment should be made by doctors, not judges. We therefore annul the
    decision of the appeals board and remand for further proceedings.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    Applicant suffered a work-related injury to her left foot and lumbar spine. On
    October 16, 2014, applicant’s treating physician submitted a request for authorization of
    medical treatment to SCIF proposing to treat applicant with a lumbar epidural injection.
    On October 21, 2014, SCIF denied the request.
    Applicant timely requested independent medical review. On November 26,
    3
    2014, SCIF sent the necessary medical records to Maximus Federal Services, Inc. for
    review. On January 8, 2015, Maximus issued its IMR determination, upholding SCIF’s
    denial of the proposed medical treatment. The IMR determination became the final
    determination of the director as a matter of law. (§ 4610.6, subd. (g).)
    Applicant appealed the IMR determination to the appeals board (§ 5300), which
    directed the matter to an administrative law judge for a hearing (§ 5310). Applicant
    2
    By separate order of this date, we grant in part and deny in part the requests for
    judicial notice submitted by CHP on December 21, 2015, January 28, 2016, and
    April 13, 2016.
    3
    Maximus is a private company contracted by the Division of Workers’
    Compensation to conduct independent medical review. (See § 139.5.)
    4
    argued (as is pertinent here) that the IMR determination was invalid because Maximus
    failed to issue it within the 30-day time period provided by section 4610.6,
    subdivision (d), and the applicable regulation (Cal. Code Regs., tit. 8, § 9792.10.6,
    subd. (g)). The judge agreed the IMR determination was issued 13 days late, but
    nevertheless found the determination was valid and binding on the parties, concluding
    that an untimely IMR determination “does not confer jurisdiction on the [workers’
    compensation judge] to decide any medical treatment issues.”
    Applicant filed a petition seeking reconsideration of the judge’s decision by the
    appeals board (§ 5900), and again argued that the 30-day time period set forth in
    section 4610.6, subdivision (d), is a mandatory provision and, accordingly, an untimely
    IMR determination is invalid. Applicant further asserted that, in the absence of a timely
    IMR determination, the appeals board had the authority to decide whether the proposed
    treatment was medically necessary and appropriate. A majority of the three-member
    panel agreed with applicant and went on to find, contrary to the IMR determination, that
    the proposed treatment was supported by substantial medical evidence and was
    4
    consistent with the treatment schedule promulgated by the director. One member of
    the panel dissented, and would have found that the IMR determination, though
    untimely, was valid and binding on the parties.
    Petitioner filed the instant petition seeking review of the appeals board’s
    decision. We issued a writ of review because this case presents an important issue of
    first impression regarding the interpretation of section 4610.6, and because it relates to
    an issue upon which the appeals board has rendered conflicting decisions.
    4
    As we explain in detail, post, the director adopted a medical treatment utilization
    schedule (MTUS) which sets forth the frequency, duration, intensity, and
    appropriateness of medical treatment commonly provided to injured workers.
    (§ 5307.27, subd. (a).)
    5
    DISCUSSION
    Petitioner contends an IMR determination is valid and binding upon the parties
    as the final determination of the director, even if that determination is rendered after the
    30-day time period provided by section 4610.6, subdivision (d). We agree.
    A.     Standard of Review
    The proper interpretation of a workers’ compensation statute presents a question
    of law subject to our independent review. (Smith v. Workers’ Comp. Appeals Bd.
    (2009) 
    46 Cal. 4th 272
    , 277; State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd.
    (2008) 
    44 Cal. 4th 230
    , 236, fn. 6 (Sandhagen).) Typically, we would afford the appeals
    board’s interpretation of the statute “great weight,” as it was “rendered in an official
    adjudicatory proceeding by an administrative body with considerable expertise
    interpreting and implementing a particular statutory scheme.” (Larkin v. Workers’
    Comp. Appeals Bd. (2015) 
    62 Cal. 4th 152
    , 158 (Larkin); see also Brodie v. Workers’
    Comp. Appeals Bd. (2007) 
    40 Cal. 4th 1313
    , 1331 [noting the appeals board’s
    “ ‘extensive expertise in interpreting and applying the workers’ compensation
    scheme’ ”].) However, we do not defer to the appeals board’s statutory interpretation in
    this case because the appeals board has rendered conflicting decisions on the issue
    5
    presented here.
    The principles guiding our review are well settled. “In interpreting a statute, we
    begin with its text, as statutory language typically is the best and most reliable indicator
    of the Legislature’s intended purpose. (Fitch v. Select Products Co. (2005) 
    36 Cal. 4th 812
    , 818; see Baker v. Workers’ Comp. Appeals Bd. (2011) 
    52 Cal. 4th 434
    , 442.) We
    consider the ordinary meaning of the language in question as well as the text of related
    5
    See, e.g., Arredondo v. Workers’ Comp. Appeals Bd. (2015) 80 Cal.Comp.Cases
    1050 [concluding section 4610.6, subdivision (d), is directory]; Hallmark Marketing v.
    Workers’ Comp. Appeals Bd. (Southard) (2015) 2015 Cal.Wrk.Comp. P.D. Lexis 365
    [concluding section 4610.6, subdivision (d), is mandatory], currently pending before the
    Third District Court of Appeal on writ of review, No. C079912.
    6
    provisions, terms used in other parts of the statute, and the structure of the statutory
    scheme. (See Lonicki v. Sutter Health Central (2008) 
    43 Cal. 4th 201
    , 209; California
    Teachers Assn. v. San Diego Community College Dist. (1981) 
    28 Cal. 3d 692
    , 698; see
    also Clean Air Constituency v. State Air Resources Bd. (1974) 
    11 Cal. 3d 801
    , 813-814;
    People v. Rogers (1971) 
    5 Cal. 3d 129
    , 142 (conc. & dis. opn. of Mosk, J.) [in construing
    a statute, we do not look at each term as if ‘in a vacuum,’ but rather gather ‘the intent of
    the Legislature . . . from the statute taken as a whole’].) If the statutory language in
    question remains ambiguous after we consider its text and the statute’s structure, then
    we may look to various extrinsic sources, such as legislative history, to assist us in
    gleaning the Legislature’s intended purpose. (Holland v. Assessment Appeals Bd. No. 1
    (2014) 
    58 Cal. 4th 482
    , 490.)” 
    (Larkin, supra
    , 62 Cal.4th at pp. 157-158.) Our goal is to
    “select the construction that comports most closely with the apparent intent of the
    Legislature, with a view to promoting rather than defeating the general purpose of the
    statute, and avoid an interpretation that would lead to absurd consequences.” (People v.
    Jenkins (1995) 
    10 Cal. 4th 234
    , 246.)
    6
    B.     Background legal principles
    In order to give context to our analysis, we first review several Legislative
    enactments pertaining to the evaluation of an injured worker’s request for authorization
    of medical treatment.
    6
    Although the extensive use of acronyms is commonplace among those immersed
    in the field of workers’ compensation law, we minimize their use in our opinion, as
    acronyms tend to obfuscate rather than illuminate the issues for the uninitiated. In that
    vein, we refer to a request for authorization of medical treatment (RFA) as a “request
    for treatment,” the medical treatment utilization schedule (MTUS) as “the treatment
    schedule” or the “director’s treatment schedule,” the Workers’ Compensation Appeals
    Board (WCAB) as the “appeals board” and the Administrative Director of the Division
    of Workers’ Compensation (AD) as the “director.” Other short forms are defined in the
    text of this opinion.
    7
    1.     Utilization review: the employer’s evaluation of an
    injured worker’s request for authorization of
    medical treatment.
    Prior to 2004, an employer’s obligation to cover an injured worker’s medical
    treatment was largely directed by the worker’s treating physician. No uniform medical
    treatment guidelines existed at that time, and the treating physician’s determinations
    were presumptively correct. 
    (Sandhagen, supra
    , 44 Cal.4th at p. 238.) If an employer
    wanted to challenge a treating physician’s recommendation, it was required to engage in
    a “cumbersome, lengthy, and potentially costly” dispute resolution process. (Ibid.)
    Generally, this process required the parties to retain one or more medical examiners
    and, “[i]f a dispute remained after the comprehensive medical evaluations were
    completed, either party could request an administrative hearing. [Citation.] If the
    hearing failed to satisfy the parties, they could seek reconsideration by the [appeals
    board] [citation] and, ultimately, review by the Court of Appeal [citation].” (Id. at
    p. 239.)
    In 2004, two pieces of legislation, Senate Bill No. 228 (2003-2004 Reg. Sess.)
    and Senate Bill No. 899 (2003-2004 Reg. Sess.), went into effect and implemented
    comprehensive workers’ compensation reform. 
    (Sandhagen, supra
    , 44 Cal.4th at
    pp. 239-242.) Particularly relevant here are changes to both the standards and the
    process used by an employer to evaluate an injured worker’s request for medical
    treatment.
    First, the Legislature required the director “to adopt a medical treatment
    utilization schedule to establish uniform guidelines for evaluating treatment requests.”
    (Stats. 2003, ch. 639, § 41, codified at section 5307.27, subd. (a); see 
    Sandhagen, supra
    ,
    44 Cal.4th at p. 240.) The Legislature provided that the treatment schedule should
    incorporate “evidence-based, peer-reviewed, nationally recognized standards of care,”
    and should “address, at a minimum, the frequency, duration, intensity, and
    appropriateness” of medical treatment commonly rendered to injured workers.
    (§ 5307.27, subdivision (a); 44 Cal.4th at p. 240.) In addition, the Legislature
    8
    eliminated the presumption of correctness previously afforded to the recommendation of
    the worker’s treating physician, and replaced it with a rebuttable presumption of
    correctness in favor of the treatment schedule. (Stats. 2003, ch. 639, § 20 [amending
    former § 4062.9, subd. (b)], and § 27 [adding § 4604.5, subd. (a)].) Under this new
    scheme, if an injured worker seeks medical treatment that deviates from the director’s
    treatment schedule, he or she must establish by a preponderance of the evidence that the
    proposed treatment is “reasonably required to cure or relieve the injured worker from
    the effects of his or her injury.” (Stats. 2003, ch. 639, § 27(c) [adding § 4604.5,
    subd. (a)].)
    Second, the Legislature changed the way employers review and resolve an
    injured worker’s request for medical treatment. Specifically, the Legislature required
    all employers to adopt a formal evaluation procedure called “utilization review,” i.e.,
    a process used to “prospectively, retrospectively, or concurrently review and approve,
    modify, delay, or deny . . . treatment recommendation by physicians . . . . ”
    (Stats. 2003, ch. 639, § 28 [adding § 4610].) The creation of utilization review
    significantly impacted the medical treatment evaluation process in several respects.
    Importantly for our purposes, the Legislature provided that a claims administrator may
    approve a worker’s request for treatment, but only a “licensed physician who is
    competent to evaluate the specific clinical issues involved in the medical treatment
    services” may “modify, delay, or deny requests for authorization.” (Stats. 2003,
    ch. 639, § 28 [codified at § 4610, subd. (e)]; Cal. Code Regs., tit. 8, § 9792.9.1,
    subd. (e)(1); see also 
    Sandhagen, supra
    , 44 Cal.4th at p. 240.) As the Supreme Court
    noted, requiring an employer to engage in a medical review before denying or
    modifying an injured worker’s request for treatment “represent[ed] a significant
    departure from the process in former section 4062, which permitted an employer or
    claims adjuster (without review by a physician) to object to a treatment request.” (Ibid.)
    Notably, the Legislature also mandated relatively short time frames for the employer to
    complete its utilization review process. (§ 4610, subd. (g).)
    9
    Third, the Legislature provided that an employer’s utilization review
    determination must be consistent with the director’s treatment schedule. (Stats. 2003,
    ch. 639, § 28 [codified at § 4610, subd. (f)(2)].) In practice, therefore, an employer is
    generally required to authorize proposed medical treatment if it is supported by
    substantial medical evidence and conforms to the director’s treatment schedule.
    Taken together, these reforms reflect that “the Legislature intended utilization
    review to ensure quality, standardized medical care for workers in a prompt and
    expeditious manner. To that end, the Legislature enacted a comprehensive process that
    balances the dual interests of speed and accuracy, emphasizing the quick resolution of
    treatment requests, while allowing employers to seek more time if more information is
    needed to make a decision.” 
    (Sandhagen, supra
    , 44 Cal.4th at p. 241.)
    2.     Independent medical review: the injured worker’s opportunity
    to challenge an employer’s adverse determination.
    In 2012, the Legislature passed additional workers’ compensation reform
    legislation. (Sen. Bill No. 863 (2011-2012 Reg. Sess.) (S.B. 863).) We are primarily
    concerned here with the enactments governing dispute resolution following an
    employer’s timely utilization review determination. (Stats. 2012, ch. 363, §§ 45, 46
    [codified at sections 4610.5 and 4610.6].)
    If a worker’s proposed treatment is approved during utilization review, the
    determination becomes final and the employer is not permitted to challenge it.
    (§ 4610.5, subd. (f)(1).) But if the physician reviewing the proposed treatment during
    utilization review modifies, delays, or denies the injured worker’s treatment request, the
    worker may seek review of that determination through independent medical review.
    (§ 4610.5, subd. (d).) “In other words, the IMR process gives workers, but not
    employers, a second chance to obtain a decision in their favor.” (Stevens v. Workers’
    Comp. Appeals Board (2015) 
    241 Cal. App. 4th 1074
    , 1090 (Stevens).)
    Only one other appellate court has had occasion to analyze the statutes relating to
    IMR in a published decision. (See 
    Stevens, supra
    , 
    241 Cal. App. 4th 1074
    [rejecting state
    and federal constitutional challenges to IMR].) There, a panel of the First District
    10
    succinctly described the newly-adopted dispute resolution process: “The IMR is
    performed by an independent review organization, which assigns medical professionals
    to review pertinent medical records, provider reports, and other information submitted
    to the organization or requested from the parties. (§ 4610.6, subd. (b).) The physician
    reviewer is to approve the requested treatment if it is ‘medically necessary based on the
    specific medical needs of the employee and the standards of medical necessity as
    defined in subsection (c) of Section 4610.5.’ (§ 4610.6, subd. (c).) The IMR
    determination must state whether the disputed service is medically necessary, identify
    the injured worker’s medical condition and the relevant medical records, and set forth
    the relevant findings associated with the standards of medical necessity. (§ 4610.6,
    subd. (e).) These standards include, in the order listed in the statute: (1) the [treatment
    schedule]; (2) peer-reviewed scientific and medical evidence regarding the effectiveness
    of the disputed treatment; (3) nationally recognized professional standards; (4) expert
    opinion; and (5) generally accepted standards of medical practice. (§ 4610.5,
    subd. (c)(2).)” (Id. at p. 1090.)
    The IMR determination is deemed as a matter of law to constitute the final
    determination of the director and is binding on all parties. (§ 4610.6, subd. (g).)
    Although a worker may appeal the IMR determination and receive a hearing before an
    administrative law judge (§ 5300; Cal. Code Regs., tit. 8, § 10957.1, subd. (k)), the
    grounds for appeal are limited by statute: The only specified bases for relief are that the
    director acted without authority, the determination was procured by fraud, the physician
    reviewer had a material conflict of interest, the determination was the result of bias, or
    the determination was based on a plainly erroneous fact that is not a matter subject to
    expert opinion. (§ 4610.6, subd. (h).) A party adversely affected by the decision of the
    administrative law judge may seek review of that decision by a panel of the appeals
    board. (§ 5900; Cal. Code Regs., tit. 8, § 10957.1, subd. (l).) Significantly, however, if
    the appeals board reverses the IMR determination, “it cannot now, as it could before,
    reweigh the evidence and make a contrary factual determination as to the medical
    necessity of the requested treatment. [Citations.] Instead, it may only remand the case
    11
    for a new IMR. (§ 4610.6, subd. (i).)” (
    Stevens, supra
    , 241 Cal.App.4th at p. 1091; see
    also Cal. Code Regs., tit. 8, § 10957.1, subd. (m).)
    C.     An untimely IMR determination is valid and binding
    upon the parties.
    1.     Where a statute compels government action, “shall”
    may be used by the Legislature in either a mandatory
    or directory manner.
    Section 4610.6, subdivision (d), provides that the organization performing the
    independent medical review “shall complete its review and make its determination in
    writing, and in layperson’s terms to the maximum extent practicable, within 30 days of
    the receipt of the request for review and supporting documentation, or within less time
    as prescribed by the administrative director. . . . Subject to the approval of the
    administrative director, the deadlines for analyses and determinations involving both
    regular and expedited reviews may be extended for up to three days in extraordinary
    circumstances or for good cause.” (§ 4610.6, subd. (d).) The parties dispute the
    meaning and effect of the word “shall” in this provision.
    The appeals board concluded that section 4610.6, subdivision (d), is clear and
    unambiguous. According to the appeals board, “shall” is mandatory and any IMR
    determination issued after the 30-day time frame is necessarily invalid. In support of
    this interpretation, the appeals board cited section 15, which provides “ ‘[s]hall’ is
    mandatory and ‘may’ is permissive.” (§ 15.) Thus, the appeals board concluded that
    construing “shall” as mandatory, such that an untimely IMR determination is invalid,
    comports with both the ordinary meaning and the statutory definition of “shall.” As we
    explain, however, the issue is more nuanced than the appeals board recognized.
    In a statute directing government action, “shall” may be used in two different
    contexts: the mandatory-directory context, or the mandatory-permissive context. In
    People v. McGee (1977) 
    19 Cal. 3d 948
    (McGee), the Supreme Court explained that
    a literal construction of “shall,” as adopted by the appeals board in this case, may
    sometimes “improperly equate[] the mandatory-directory duality with the linguistically
    12
    similar, but analytically distinct, ‘mandatory-permissive’ dichotomy.” (Id. at p. 958.)
    The Court noted that, in the mandatory-permissive context, “ ‘the term “mandatory”
    refers to an obligatory [procedure] which a governmental entity is required to [follow]
    as opposed to a permissive [procedure] which a governmental entity may [follow] or not
    as it chooses. By contrast, the “directory” or “mandatory” designation does not refer to
    whether a particular statutory requirement is “permissive” or “obligatory,” but instead
    simply denotes whether the failure to comply with a particular procedural step will or
    will not have the effect of invalidating the governmental action to which the procedural
    requirement relates. [Citations.]’ [Citation.]” (Id. at pp. 958-959; final brackets
    added.) In other words, where a government action is mandatory in the
    obligatory-permissive sense and the government fails to act, the government can be
    compelled (i.e., mandated) to act in accordance with the statute. But where
    a government action is mandatory in the mandatory-directory sense and the government
    fails to act, it effectively loses jurisdiction to act in accordance with the statute.
    The McGee Court elaborated, observing that “[a]lthough the mandatory-directory
    and obligatory-permissive dichotomies are thus analytically distinct, in some instances
    there is an obvious relationship between the two. If, for example, a statute simply
    embodies a permissive procedure with which a governmental entity may or may not
    comply as it chooses, the entity’s failure to comply will generally not invalidate the
    entity’s subsequent action. The converse of this proposition is not always true,
    however, for as we observed in Morris [v. County of Marin (1977) 
    18 Cal. 3d 901
    ],
    ‘[m]any statutory provisions which are “mandatory” in the obligatory sense are
    accorded only “directory” effect.’ [Citation.]” 
    (McGee, supra
    , 19 Cal.3d at p. 959,
    first, second and fourth brackets added; see also People v. Gray (2014) 
    58 Cal. 4th 901
    ,
    909; City of Santa Monica v. Gonzalez (2008) 
    43 Cal. 4th 905
    , 923-924.) Stated slightly
    differently, “seemingly mandatory language need not be construed as jurisdictional
    where to do so might well defeat the very purpose of the enactment or destroy the rights
    of innocent aggrieved parties. [Citations.] In other words, the provision at issue may be
    considered mandatory only in the sense that the board ‘could be mandated to act if it
    13
    took more time than the short period allotted.’ ” (Edwards v. Steele (1979) 
    25 Cal. 3d 406
    , 412 (Edwards) [discussing a city ordinance setting time frame for hearing and
    decision by the permit appeals board].)
    We note that section 15, upon which the appeals board relied in this case to
    support its interpretation of section 4610.6, subdivision (d), juxtaposes “mandatory”
    against “permissive,” which arguably suggests the Legislature used “shall” in the
    obligatory-permissive sense rather than in the mandatory-directory sense, as the appeals
    board concluded. (See 
    McGee, supra
    , 19 Cal.3d at p. 960 [discussing section 15 and
    concluding that “on its face, the statutory language suggests that the Legislature
    intended the present provision to be mandatory (i.e., obligatory), rather than
    permissive”].) However, given the difference in meaning given to “shall” in the
    statutory context, we conclude section 4610.6, subdivision (d), is ambiguous.
    Accordingly, we move beyond the plain language of that section and consider its
    meaning with reference to the rest of the statutory scheme and the intent of the
    Legislature.
    2.    As used in section 4610.6, subdivision (d), “shall” is
    directory, not mandatory.
    Generally, time limits applicable to government action are deemed to be
    directory unless the Legislature clearly expresses a contrary intent. 
    (Edwards, supra
    ,
    25 Cal.3d at p. 410.) “ ‘In ascertaining probable intent, California courts have
    expressed a variety of tests. In some cases focus has been directed at the likely
    consequences of holding a particular time limitation mandatory, in an attempt to
    ascertain whether those consequences would defeat or promote the purpose of the
    enactment. [Citations.] Other cases have suggested that a time limitation is deemed
    merely directory “unless a consequence or penalty is provided for failure to do the act
    within the time commanded.” ’ ” (Ibid.; California Correctional Peace Officers Assn.
    v. State Personnel Bd. (1995) 
    10 Cal. 4th 1133
    , 1145 (California Correctional).)
    14
    Applying either of these general tests leads us to conclude that the Legislature
    intended the 30-day provision in section 4610.6, subdivision (d), to have a directory,
    rather than a mandatory, effect.
    a.     The statute contains no consequence or penalty if an
    IMR determination is untimely.
    As noted, ante, statutory time limits are usually deemed to be directory in the
    absence of a penalty or consequence for noncompliance. For example, in California
    
    Correctional, supra
    , 
    10 Cal. 4th 1133
    , the Supreme Court considered whether
    Government Code section 18671.1, which requires the State Personnel Board to issue its
    7
    decisions in less than six months, is mandatory or directory. In concluding that the
    time limit is directory, the Court emphasized the statute “includes no provision which
    suggests that action by the Board after the time limit has been exceeded is invalid.”
    (Id. at p. 1145.) The Court went on to say that “[w]hen the Legislature has specified
    a time within which an administrative board is to render a decision, that time limit may
    be mandatory in the obligatory sense, but this ‘does not necessarily mean that a failure
    to comply with its provisions causes a loss of jurisdiction.’ [Citation.]” (Id. at p. 1147.)
    The Court noted that when the Legislature intends to make a statutory directive
    mandatory, it generally does so by providing a self-executing consequence for the
    government’s failure to act. Code of Civil Procedure section 660, for instance, contains
    a mandatory directive and the failure to comply with the time limit terminates the
    court’s jurisdiction: “the power of the court to rule on a motion for a new trial shall
    expire 60 days from and after the mailing of notice of entry of judgment by the clerk of
    the court . . . or 60 days from and after service on the moving party by any party of
    written notice of the entry of the judgment . . . . ” (Code Civ. Proc., § 660.) Thus, “if
    7
    Government Code section 18671.1, subdivision (b), provides: “The board shall
    render its decision within a reasonable time after the conclusion of the hearing or
    investigation, except that the period from the filing of the appeal to the decision of the
    board shall not exceed six months.” (Govt. Code, § 18671.1, subd. (b).)
    15
    the court fails to rule on a motion for new trial within 60 days, ‘the effect shall be
    a denial of the motion without further order of the court.’ ” (California 
    Correctional, supra
    , 10 Cal.4th at pp. 1147-1148.) Similarly, in Matus v. Board of Administration
    (2009) 
    177 Cal. App. 4th 597
    , the Court of Appeal held that Government Code
    section 11517, subdivision (c)(2), which states that an administrative law judge’s
    proposed decision is deemed adopted if the agency does not act within 100 days, is also
    mandatory. (Id. at pp. 608-611.)
    By contrast, statutes setting forth time frames for government action that do not
    include a self-executing consequence are almost universally construed as directory,
    rather than mandatory or jurisdictional. (See, e.g., California 
    Correctional, supra
    ,
    10 Cal.4th at p. 1148 [Government Code section 18671.1, which requires personnel
    board to render decision within six months, is directory]; 
    Edwards, supra
    , 25 Cal.3d at
    pp. 412-413 [municipal code provision that board of permit appeals shall act within
    specified time held directory, not jurisdictional]; Board of Education v. Sacramento
    County Bd. of Education (2001) 
    85 Cal. App. 4th 1321
    , 1327 [Education Code
    section 48918, allotting school board 40 days to make decision to expel student, held
    directory, not jurisdictional]; Koll Hancock Torrey Pines v. Biophysica Foundation, Inc.
    (1989) 
    215 Cal. App. 3d 883
    , 887 [Cal. Rules of Court, former rule 1615(b), which
    required arbitrator to file decision within 10 days, was directory; late award not invalid];
    Liberty Mut. Ins. Co. v. Ind. Acc. Com. (1964) 
    231 Cal. App. 2d 501
    , 508-510
    [requirement under section 5313 that the commission “shall” file award within 30 days
    after submission is directory only, and late filed award is not invalid as in excess of
    jurisdiction]; Koehn v. State Board of Equalization (1958) 
    166 Cal. App. 2d 109
    ,
    118-119 [Business and Professions Code section 23086, providing Alcoholic Beverage
    Control appeals board “shall” enter its decisions on appeals within 60 days held
    directory only, and late-filed order not invalid as in excess of jurisdiction].)
    Applying this analysis to the present case, we conclude the 30-day period
    provided in section 4610.6, subdivision (d), is directory, rather than mandatory and
    jurisdictional. Neither section 4610.5, which relates to the initiation of IMR, nor
    16
    section 4610.6, which relates to the execution of IMR, provides any consequence or
    penalty in the event the IMR organization, under the auspices of the director, fails to
    issue an IMR determination within the 30-day period. Moreover, the Legislature
    provided that the exclusive means to challenge an IMR determination is by appeal, and
    expressly limited the grounds upon which an appeal may proceed. (§ 4610.6, subd. (h).)
    Notably, untimeliness of the IMR determination is not one of the statutory grounds for
    appeal. The absence of a penalty or consequence for the failure to comply with the
    30-day time limit, coupled with the limited grounds for appeal, indicate that the
    Legislature did not intend to divest the director of jurisdiction to issue an IMR
    determination after the 30-day window expires.
    b.      Construing the 30-day provision as directory furthers
    the legislative objective of S.B. 863.
    In enacting S.B. 863, the Legislature made express findings regarding the
    purpose of IMR. First, it found that the prior system of dispute resolution concerning an
    injured worker’s requests for medical treatment did “not uniformly result in the
    provision of treatment that adhere[d] to the highest standards of evidence-based
    medicine, [which] adversely affect[ed] the health and safety of workers injured in the
    course of employment.” (Stats. 2012, ch. 363, § 1(d).) By creating IMR, a system in
    which “medical professionals ultimately determine the necessity of requested
    treatment,” the Legislature intended to “further[] the social policy of this state in
    reference to using evidence-based medicine to provide injured workers with the highest
    quality of medical care.” (Id. at § 1(e); see also 
    Stevens, supra
    , 241 Cal.App.4th at
    p. 1096.) Further, the Legislature observed that the prior system of dispute resolution,
    i.e., the “process of appointing qualified medical evaluators to examine patients and
    resolve treatment disputes,” was not only costly and time-consuming, but “it
    prolong[ed] disputes and cause[d] delays in medical treatment for injured workers.”
    (Stats. 2012, ch. 363, § 1(f).) The Legislature also noted that the use of medical
    evaluators hired by the parties often resulted in bias on the part of the examiners, and
    therefore found that the “independent and unbiased medical expertise of specialists”
    17
    was necessary to ensure “[t]imely and medically sound determinations of disputes over
    appropriate medical treatment.” (Ibid.)
    We conclude from these findings that the Legislature intended to remove the
    authority to make decisions about medical necessity of proposed treatment for injured
    workers from the appeals board and place it in the hands of independent, unbiased
    medical professionals. Construing section 4610.6, subdivision (d), as directory best
    furthers the Legislature’s intent in this regard. The appeals board’s conclusion in this
    case—that an untimely IMR determination terminates the IMR process and vests
    jurisdiction in the appeals board to determine medical necessity—is wholly inconsistent
    with the Legislature’s stated goals and their evident intent.
    Other provisions of S.B. 863 support our conclusion that the Legislature did not
    intend noncompliance with the time limit in section 4610.6, subdivision (d), to
    effectively divest the director of jurisdiction to conduct IMR. For example, prior to
    S.B. 863, section 4604 provided that the appeals board had jurisdiction to resolve all
    controversies between an injured worker and his or her employer upon the request of
    either party. (§ 4604, as amended by Stats. 1965, ch. 1513, § 88.) Thus, as noted ante,
    the appeals board routinely resolved conflicts over the medical necessity of proposed
    treatment which remained after the parties obtained one or more medical examinations.
    But as part of S.B. 863, the Legislature modified section 4604, so that it now reads
    “[c]ontroversies between employer and employee arising under this chapter shall be
    determined by the appeals board, upon the request of either party, except as otherwise
    provided by Section 4610.5.” (§ 4604, emphasis added.) In turn, section 4610.5, which
    was added to the Labor Code by S.B. 863, provides that an employer’s timely utilization
    review decision to deny, modify or delay requested treatment “may be reviewed or
    appealed only by independent medical review.” (§ 4610.5, subd. (e), emphasis added;
    see also § 4610.5, subd. (d).) Similarly, the Legislature modified section 4062, the
    section addressing the use of medical examiners to resolve disputes over treatment
    requests, so that it now provides: “If the employee objects to a decision made pursuant
    to Section 4610 to modify, delay, or deny a request for authorization of a medical
    18
    treatment recommendation made by a treating physician, the objection shall be resolved
    only in accordance with the independent medical review process established in
    Section 4610.5.” (§ 4062, subd. (b), emphasis added.) Taken together, these
    enactments removed disputes over the medical necessity of requested treatment from
    the jurisdiction of the appeals board, at least insofar as they are within the scope of
    8
    section 4610.5.
    The Legislature also provided that the IMR determination is presumptively
    correct and, as noted ante, strictly limited the grounds for appeal. (§ 4610.6, subd. (h).)
    Further, even if an appeal from an IMR determination is successful, the case does not go
    to the appeals board for its review; instead, a successful appeal results in a second IMR.
    (§ 4610.6, subd. (i).) These statutory provisions further indicate that the Legislature
    intended to limit the jurisdiction of the appeals board to determine medical necessity of
    proposed treatment.
    Finally, and perhaps most tellingly, the Legislature provided that “[i]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.” (Stats. 2012, ch. 363, § 45, codified at
    8
    The appeals board has found that it has jurisdiction to decide whether requested
    treatment is medically necessary if an employer fails to issue a timely utilization review
    decision. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1306
    (en banc) (Dubon II).) This finding is consistent with the regulations promulgated by
    the director. (See Cal. Code Regs., tit. 8, § 10451.2, subd. (c) [stating that “independent
    medical review [IMR] applies solely to disputes over the necessity of medical treatment
    where [the employer] has conducted a timely and otherwise procedurally proper
    utilization review”], second brackets added.) Applicant urges us to adopt the reasoning
    of Dubon II, and hold that the appeals board also has jurisdiction to determine medical
    necessity of proposed treatment if the IMR organization fails to issue a timely IMR
    determination. We express no opinion about the appeals board’s reasoning in Dubon II,
    as that issue is not before us. However, we note there is no regulation that expressly
    invalidates an untimely IMR determination, as there is with respect to an employer’s
    untimely utilization review decision. On that basis, we reject applicant’s argument and
    decline to apply the reasoning of Dubon II in this case.
    19
    § 4610.6, subd. (i).) We find this portion of the statute—particularly the use of the
    phrase, “in no event”—to be a frank expression of the Legislature’s desire to remove the
    issue of medical necessity of proposed treatment from the jurisdiction of the appeals
    board in all cases subject to IMR. The Legislature’s intent would be defeated by giving
    section 4610.6, subdivision (d), mandatory effect, as the appeals board did in the present
    case.
    Applicant argues that giving the statute directory effect would frustrate the
    purpose of S.B. 863 because, in applicant’s view, the Legislature’s primary goal was to
    ensure that injured workers receive prompt medical treatment. The appeals board also
    emphasized this point, noting that it has a constitutional mandate to enforce a complete
    system of workers’ compensation, including expeditious provision of medical care for
    injured workers. As noted ante, the Legislature enacted S.B. 863 in part to reduce the
    delays associated with the prior system of dispute resolution. However, the statutory
    construction adopted by the appeals board would not reduce delay; it would perpetuate
    the time-consuming litigation process the Legislature set out to eliminate. (Stats. 2012,
    ch. 363, § 1(f) [“The existing process of appointing qualified medical evaluators to
    examine patients and resolve treatment disputes is costly and time-consuming, and it
    prolongs disputes and causes delays in medical treatment for injured workers.”];
    Sen. Com. on Labor and Industrial Relations, analysis of Sen. Bill No. 863 (2011-2012
    Reg. Sess.) p. 2 [noting that independent medical review “[p]rovides a timeline for
    approval of treatment after utilization review of 2-3 months, rather than the current
    judicial timelines which can take up to 18 or 24 months”].) The present case illustrates
    this point perfectly. Maximus issued the IMR in this case on January 8, 2015, 79 days
    after SCIF rejected applicant’s request for treatment and 13 days after the 30-day time
    frame provided by section 4610.6, subdivision (d). However, the appeals board did not
    render its decision until November 13, 2015, nearly 13 months after SCIF rejected
    applicant’s request for treatment, and more than 10 months after Maximus rendered the
    IMR determination.
    20
    Providing timely medical care to injured workers is a paramount concern of the
    Legislature, as evidenced by the short time frames provided for decision-making during
    utilization review and IMR. (See, e.g., 
    Sandhagen, supra
    , 44 Cal.4th at p. 243 [“In
    place of the often lengthy and cumbersome process employers used to dispute treatment
    requests . . . the Legislature created a utilization review process that combines what are
    typically quick resolutions (§ 4610, subd. (g)(1)) with accuracy”]; and see § 4610.5,
    subd. (i) [prohibiting employer from engaging in any action that would delay IMR and
    authorizing fine of up to $5,000 per day for violation] & subd. (l) [requiring employer to
    submit medical records to IMR within 10 days of request].) But we see no evidence in
    the statute or the legislative history to indicate the Legislature intended to divest the
    director of jurisdiction to conduct IMR simply because the IMR determination is
    untimely. We also note that when S.B. 863 first took effect, Maximus received
    approximately 10 times the number of IMR requests expected and was overwhelmed by
    the volume. (Cal. Dept. of Industrial Relations, S.B. 863: Assessment of Workers’
    Compensation Reviews (July 17, 2014) pp. 7, 16.) As a result, Maximus was initially
    unable to issue timely IMR determinations. (Ibid.) 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. (Cal. Dept. of Industrial Relations, S.B. 863:
    Assessment of Workers’ Compensation Reviews (July 2015) p. 8; contract available at
     [as of June 21,
    2016].)
    c.     Interpreting the statute as mandatory would yield
    absurd results.
    Furthermore, we believe construing the 30-day time frame provided in
    section 4610.6, subdivision (d), as mandatory would lead to absurd results.
    Specifically, the Legislature has provided that where an applicant successfully
    challenges an IMR determination on appeal, the remedy is a second IMR determination
    by a different IMR organization, or by a different reviewer at the same organization.
    21
    (§ 4610.6, subd. (i); Cal. Code Regs., tit. 8, § 9792.10.7, subd. (d).) Thus, even if an
    IMR is procured by fraud or infected by a conflict of interest on the part of the reviewer,
    the applicant is only entitled to a new IMR and cannot litigate the issue of medical
    necessity before the appeals board. Meanwhile, under the appeals board’s construction
    of the statute, an injured worker who receives an untimely IMR determination would be
    required in every case to engage in costly and time-consuming litigation before the
    appeals board, even if the IMR determination is only one date late and it authorizes the
    requested medical treatment. We do not believe the Legislature would sanction such an
    absurd outcome.
    d.     An injured worker may bring a petition for
    writ of mandate to compel the director to issue
    an IMR determination.
    Finally, we reject applicant’s contention that interpreting section 4610.6,
    subdivision (d), as directory would frustrate the purpose of the statute because it would
    leave injured workers who do not receive timely IMR determinations in limbo. The
    only other published decision interpreting section 4610.6, expressly declined to decide
    what remedy might be available in this circumstance. (
    Stevens, supra
    , 241 Cal.App.4th
    at p. 1101.) We take the opportunity to do so here.
    A traditional writ of mandate brought under Code of Civil Procedure
    section 1085, lies “to compel the performance of an act which the law specifically
    enjoins, as a duty resulting from an office, trust, or station.” (Code Civ. Proc., § 1085,
    subd. (a).) Under this section, mandate will lie to compel performance of a clear,
    present, and usually ministerial duty in cases where a petitioner has a clear, present and
    beneficial right to performance of that duty. (Santa Clara County Counsel Attys. Assn.
    v. Woodside (1994) 
    7 Cal. 4th 525
    , 539-540; People v. Picklesimer (2010) 
    48 Cal. 4th 330
    , 339-340.) In addition, mandate will lie to compel an officer, board, or court to
    exercise its discretion, where it refuses to act at all. (Common Cause v. Board of
    Supervisors (1989) 
    49 Cal. 3d 432
    , 442 (Common Cause).) “While ordinarily,
    mandamus may not be available to compel the exercise by a court or officer of the
    22
    discretion possessed by them in a particular manner, or to reach a particular result, it
    does lie to command the exercise of discretion—to compel some action upon the subject
    involved.” (Hollman v. Warren (1948) 
    32 Cal. 2d 351
    , 355; see also Common 
    Cause, supra
    , 49 Cal.3d at p. 442; AIDS Healthcare Foundation v. Los Angeles County Dept. of
    Public Health (2011) 
    197 Cal. App. 4th 693
    , 704.) Specifically, and of particular
    relevance here, where an administrative body is required to act within a specified time
    and it fails to do so, a writ of mandate will lie to compel the body to act. (See
    California 
    Correctional, supra
    , 10 Cal.4th at p. 1148 [holding time limits of
    Government Code section 18671.1 are directory, and noting “they may be enforced by
    a petition for writ of mandate to compel the Board” to act]; 
    Edwards, supra
    , 25 Cal.3d
    at p. 412 [noting that seemingly mandatory language in a statute is often “considered
    mandatory only in the sense that the board ‘could be mandated to act if it took more
    time than the short period allotted’ ”].)
    Although the Legislature required the director to hire an outside entity (in this
    case, Maximus) to conduct IMR, the Legislature deemed IMR services to be a new state
    function within the meaning of Government Code section 19130, subdivision (b)(2).
    (§ 139.5, subd. (f).) Further, section 4610.6, subdivision (g), provides that “[t]he
    determination of the independent medical review organization shall be deemed to be the
    determination of the administrative director . . . . ” (§ 4610.6, subd. (g).) Accordingly,
    the Legislature created a duty on the part of the director to ensure that IMR
    determinations are timely provided to injured workers seeking to overturn their
    employers’ adverse utilization review determinations. “Furthermore, we must assume
    that when passing a statute the Legislature is aware of existing related laws and intends
    to maintain a consistent body of rules.” (Fuentes v. Workers’ Comp. Appeals Bd.
    (1976) 
    16 Cal. 3d 1
    , 7.) We therefore presume that when the Legislature enacted
    S.B. 863, it was aware of Code of Civil Procedure section 1085 and its availability to
    compel administrative agency action. Moreover, we see no indication in S.B. 863
    generally, or in section 4610.6 specifically, that the Legislature intended to bar injured
    workers from seeking to compel the director to fulfill his or her statutory obligation to
    23
    render IMR determinations. We therefore hold that to the extent the director fails to
    render an IMR determination within the time frame provided by section 4610.6,
    subdivision (d)—e.g., fails to ensure the IMR organization complies with the applicable
    statutes and regulations—a writ of mandamus under Code of Civil Procedure
    section 1085 will lie, in appropriate circumstances, to compel the director to issue an
    IMR determination.
    In sum, although S.B. 863 evidences the Legislature’s intent to reduce delays in
    the provision of medical care to injured workers, the appeals board’s analysis focused
    too narrowly on that goal. As we have explained, the Legislature also intended to shift
    decision-making about medical treatment away from judges and place it in the hands of
    physicians. Construing the section 4610.6, subdivision (d), time frame as directory,
    rather than mandatory, best furthers the overall statutory design of S.B. 863, as well as
    the Legislature’s prior workers’ compensation reform efforts, implemented in 2004.
    DISPOSITION
    The decision of the appeals board after reconsideration is annulled. We remand
    to the appeals board with instructions to conduct further proceedings consistent with this
    opinion.
    CERTIFIED FOR PUBLICATION
    LAVIN, J.
    WE CONCUR:
    EDMON, P. J.
    ALDRICH, J.
    24