Post-Term Defense Fails in CT Claim

October 2nd, 2015 1 comment

One of the frustrating things about this world of ours – this land of workers’ compensation – is the cumulative trauma claim.  CT claims, in many jurisdictions, are treated much like the Easter Bunny, Santa Clause, and the non-exhausted workers’ compensation defense attorney: a silly superstition, the existence of which is dismissed as a figment of one’s imagination. santa-easter-bunny-i-exist-support-group

In California, however, CT claims are very real.  Labor Code section 5412 identifies the date of injury for a CT claim is that time at which the injured worker sustained some sort of disability and also knew (or should have known) that the disability was industrially caused.  This poses a particular problem in post-termination claims, to which Labor Code section 3600(a)(10) would normally provide a defense.

The post-termination defense also includes several exceptions, one of which is that the defense doesn’t apply when the date of injury is after the date of notice of termination, which leaves open a CT claim and all its wondrous effects on an employer’s experience modification and workers’ compensation insurance premium rate.

The case of Rodarte, a Court of Appeal opinion from 2004 (can you believe that 2004 is more than 10 years ago?) interpreted 5412 to define “disability” as “compensable temporary disability or permanent disability” going further to conclude that “medical treatment alone is not disability, but it may be evidence of compensable permanent disability, as may a need for splints and modified work.”

Well, the issue came up again in a recent writ denied case, known by the WCAB as Polanco v. West Coast Drywall and Paint.

There, the WCJ found that defendant had a valid post-termination defense, but the WCAB reversed, reasoning that his date of injury (rather than his last date of injurious exposure) was after the notice of termination.  Because applicant missed no time from work prior to his termination of employment (even though he was self-modifying and have others do some of his job duties for him).  In short, the WCAB found that the facts did not support a finding of a date of injury prior to the notice of termination, thereby defeating defendant’s post-termination defense.

Now, here’s a quote your humble blogger, in all humility, found interesting: “Defendant goes on at length in its Petition regarding when applicant knew that his symptoms were work related.  Since symptoms or modified work are not tantamount to disability pursuant to Rodarte, and applicant did not sustain disability until after notice of termination, our prior opinion did not discuss when applicant knew his symptoms or need for modified work were work-related, and we need not do so here, since it is irrelevant to the issue of when applicant was first disabled.”

An allegation of a cumulative trauma is one that alleges that, rather than any specific instance, the repeated discharge of an injured worker’s job duties cumulatively caused an injury.  How can knowledge of industrial causation be irrelevant in this case?

Take a look at Labor Code section 5400 – “no claim to recover compensation under this division shall be maintained unless within thirty days after the occurrence of the injury which is claimed to have caused the disability or death, there is served upon the employer notice in writing …” Also, take a look at 5403: “the failure to give notice under section 5400 … is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.”

One of two things happened in this scenario: either the injured worker continued to do things that caused a cumulative trauma (or injurious exposure) until his last day, even though co-workers were doing some or all of the injuries activities for him; or, the work that he actually did do himself continued to cause an injury.  In either case the issue of whether he knew that his work was causing an injury should be relevant.  An employer, with knowledge that its employee is injured (or being injured) can provide more immediate medical treatment, can provide time off or official modified duties, and, overall, can move to mitigate the harm done and the ultimate cost of the claim.

Instead, by keeping the claim a secret, an employee who knows the work is causing an injury is making matters worse for himself and for the employer.  In such a case,  the employer IS misled AND prejudiced by the failure to report the claim, as contemplated by Labor Code section 5403.  Furthermore, the legislature, in all its wisdom, knows how to write the term “date of injury” and yet declined to do so in section 5400, instead writing “the occurrence of the injury which is claimed to have caused the disability” suggesting a distinction between the two.

And, let’s not forget that both the Supreme Court and the Court of Appeal have placed considerable weight in the subjective knowledge or believe by the injured worker that his injuries are caused by work.  Although, to be fair, those cases dealt more with a statute of limitations defense than the post-termination defense.

Why is it, then, that we have a post-termination defense at all?  Do we want to cruelly punish a worker for losing his job by denying him recovery for an industrial injury?  Or perhaps we would like to add insult to injury by compounding his woes?  Your humble blogger submits to you that when a person loses his or her job, there might be room for hard feelings.  Hard feelings sometimes lead to spiteful or vengeful actions, such as litigation, including a workers’ compensation claim.

The purpose of the post-termination defense is to protect employers and insurers from some vengeful tactics by disgruntled former employees.  If the injured worker KNOWS that the work is causing an injury, and is keeping it to himself, possibly making the injury worse, shouldn’t that be relevant?

I hate to use the “F” word on a family-friendly blog, but is that really –wait for it– Fair?

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Panel QME System Goes Online Tomorrow!

September 30th, 2015 No comments

Hello, dear readers!  Are you excited? I’m excited… Online panel requests start tomorrow, and we get to watch it all unfold before our eager eyes!

Michael Jackson Popcorn

If you submitted any initial panel requests after September 3, 2015, you will probably be getting them bounced back sooner or later, because the Medical Unit is going digital!

If you haven’t already, you can watch the tutorial here.

Now, here are some things to keep in mind:

  1. No one has been able to submit a panel request since September 3, 2015, so there’s almost a month’s-worth of panel requests that will be hitting the system bright and early 8:00 a.m. on Monday. You know what that means right?  There’s a good chance the system will crash.
  2. When the system crashes – who wins? No one really – there will be endless litigation about what the result is of a panel dispute caused by a crashed system.   The pressure to use an AME will be greater than ever – will you determination hold firm?
  3. If the system does crash, there will be two categories of problems: those that submitted a panel request and didn’t get one; and those that can’t submit a panel request at all because the system is down. Where will you fall? How will you deal with it?

I shouldn’t joke too much, of course – I’m very happy to have workers’ compensation proceedings become more and more digital and electronic.  Once the system is running smoothly, we may enjoy the benefits of an instant panel, rather than a 3-week or 3-month turnaround time for a paper request.

Here’s hoping your panel submission goes smoothly, dear readers.

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COA: Dahl Reversed; Rehab Discussion Vital to Ogilvie Analysis

September 28th, 2015 No comments

Great news, dear readers!

Dahl, has been struck down!  The court of appeal, with a less-than-gentle manner, has cut short the hopes of many applicants’ attorneys hoping to “rebut” the Permanent Disability Rating Schedule and quickly inflate permanent disability.

Recently, the Court of Appeal issued its opinion in the matter of Contra Costa County v. WCAB/Dahl, rejecting the method used by applicant, her vocational rehabilitation expert, the WCJ and the WCAB.  If you’re in a rush, the basic holding is this: to rebut the PDRS, the injured worker must show that industrial injuries sustained in the instant case render the injured worker incapable of rehabilitation.  Further, although this is somewhat dicta, the Court of Appeal very strongly implied that it may be inappropriate to attempt to rebut the PDRS in cases where the alternative rating would result in less than permanent total disability.

Let’s back up real quick to lay the framework: back in 1983, the California Supreme Court held that an injured worker could rebut the permanent disability rating schedule by showing that he or she was not amenable to rehabilitation, and that the diminished future earnings capacity resulting from the industrial injury is greater than that which was accounted for in the PDRS.  The LeBoeuf court specifically held that the DFEC must be directly attributable to the employee’s work-related injury, and not to nonindustrial factors, such as the economy, language difficulties, or lack of education.

Fast forward to 2011, where the Court of Appeals holds that the PDRS can be rebutted if the injured worker’s injury impairs his or her rehabilitation, thereby causing a greater diminishment in the future earnings capacity.  Unfortunately, there wasn’t much guidance other than that, and litigation ensued on many fronts.

In the case of Dahl, the orthopedic injuries resulted in 59% permanent disability ($75,515), but the vocational rehabilitation expert’s opinions resulted in an award of 79% ($155,857.50 and a life pension of $73.44 per week, subject to COLA).  The methodology in this case was a hypothetical group of similarly situated workers (generated, somehow, by the vocational rehabilitation expert) and a determination that there would be a drastic drop in earnings.

The Court of Appeal rejected this approach, instead interpreting the Ogilvie decision to require a showing that the industrial factors of the injury (alone) prevented rehabilitation.  This was not shown to be the case in the Dahl matter.  Furthermore, the court specifically ruled that a rebuttal of the PDRS fails if it is based solely on the theory that the vocational rehabilitation expert has a “better” way of more accurately calculating the DFEC.

The Court of Appeal further rejected the idea that the failure of vocational rehabilitation to restore an injured worker to pre-injury earning capacity could rebut the PDRS.

Finally, the Court of Appeal, in dicta, noted that it was “skeptical of WCAB’s conclusion that an employee may invoke the second Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-percent permanent disability.”

So, what’s the take-away from this?  Let’s say you’re faced with an applicant’s attempt to rebut the schedule.  What about the industrial injury makes applicant not amenable to rehabilitation?  We’re living in the cyber-age people!  You can make a living swinging a hammer, driving a car, or at your computer.  Does immigration status impair the injured worker’s ability to earn money?  What about the language skills?  Is the fact that the injured worker coming to the table with a 3rd grade education or is illiterate making rehabilitation harder or impossible?

What’s more – what if the employer can offer work – regular, modified, or alternative duties – so long as the injured worker can legally accept the job?  Doesn’t that disprove any diminished future earnings?

Your humble blogger doesn’t expect the applicants’ bar to so easily abandon the potential goldmine here, and we will likely see more litigation on this front.  For now, though, dear readers, it looks like a win.

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TTD for Compensable Consequence Psyche cases?

September 21st, 2015 No comments

Happy Monday, dear readers!

Do you recall that crazy rant your humble blogger went on?  The one about the new psyche rules?  By way of recap, SB-863 amended the Labor Code to restrict psyche claims (see section 4660.1) to prevent increase in impairment for compensable consequence psyche claim, but to outline that medical treatment would still be allowed.  Thus far, the Labor Code has remained fairly silent on the question of temporary disability – if an injured worker can’t get an increase in permanent disability because of a compensable consequence psyche claim, but CAN get medical treatment… what’s the deal with temporary disability?

I bring you the case of Hernandez v. Fremont Bank and Federal Insurance, a recent panel decision that denied defendant’s petition for removal, adopting and incorporating the WCJ’s opinion.  The basic situation here was that applicant alleged a psyche injury following orthopedic injuries.  When applicant requested a psyche panel, defendant objected and a trial was had on whether or not applicant was entitled to a psyche panel.

Citing 4660.1, defendant argued that psyche injuries were no longer compensable.  By contrast, the WCJ noted that “the appropriate procedure to resolve a dispute over injury is to utilize the panel [QME] … [t]he fact that compensation for a permanent psychiatric impairment is not available to this injured worker does not deprive her of her potential right to medical care or, for that matter, temporary disability indemnity on a psychiatric basis.”

So, what’s the basis for allowing temporary disability based on a compensable consequence psyche claim?  The labor code speaks of disallowing permanent disability.  The labor code speaks of allowing medical treatment.  The Labor code is silent on temporary disability.

Your humble blogger, not unlike the weather-man who can tell you if it’s currently raining, anticipates that this might prove an issue going forward.  Due to the code’s silence on the issue, there’s a basis to deny temporary disability benefits for compensable consequence psyche injuries.

Practically speaking – it’s very important to know.  If a defendant’s potential liability for a psyche claim is limited to some psychiatric treatment or visits from a psychologist, it might not be worth the effort to resist the claim – in fact, visits with a psychologist or a psychiatrist, produce some interesting reports, and can often lead to discovery of prior injuries or claims, or subsequent employment that doesn’t come out (for one reason or another) at deposition.

On the other hand, if there’s potential for up to 104 weeks of temporary disability benefits (ranging from $17,603.04 to $117,356.72 for 2016 injuries), a defendant might have more incentive to fight the claim in its entirety – the panel disputes, the need for treatment, the liability for temporary disability benefits at all… as always, it is the uncertainty that does the damage to the billfold.

I guess we’ll see what happens, dear readers.

What’s your experience, so far?  Are you paying out TTD in compensable consequence psyche cases?  Or are you cowboying and cowgirling up and fighting TTD benefits tooth-and-nail?



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WCAB En Banc: +5 Days for IMR Appeal AND Panel Strike

September 18th, 2015 1 comment

Hello, dear readers!

A happy Friday to one and all!  Just yesterday, the WCAB issued an en banc ruling in the matter of Matute v. Los Angeles Unified School District.  Applicant had received an adverse IMR determination on November 6, 2014, and filed an appeal on December 10, 2014, exactly 34 days after the initial determination.  When the appeal was heard by a workers’ compensation Judge, it was ruled untimely because Labor Code section 4610.6(h) provides that “[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal … served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer.”

The WCAB interpreted the term “mailing” as above, to mean “served by mail.”  Accordingly, the en banc opinion reversed the WCJ’s finding, as the WCJ started counting the 30 days from the date of mailing, without addition an additional 5 days for service, as per California Code of Civil Procedure section 1013(a).

Now, the basic point held in this opinion is that you get an extra five days on top of the 30 to appeal an IMR determination.  But that’s not the gem in this opinion, as far as your humble blogger is concerned.

The opinion can be applied to the panel strike process – do you have 10 days from the date of issuance of the panel to strike a name, or fifteen?  This blog commented on this post some time ago – practitioners had a writ denied case on one hand, telling them the 5-days don’t apply to panel strikes, and a panel decision from 2014 telling them that the 5-day period does apply.

Now, it appears, there is a binding en-banc approval of the holding that parties have an additional 5 days to contemplate and strike a name from a panel.  (See page 6, footnote 10).

Don’t get your humble blogger wrong, dear readers – this isn’t all bad or all good.  On the one hand, IMR tends to overwhelmingly uphold UR determinations, so giving an applicant an additional 5 days to appeal those decisions isn’t going to be a particularly good thing.  On the other hand, an IMR appeal can only really provide a second review to the applicant, which will still likely have the same result.  As for the 5-day application to the striking process, the extra time is not particularly important.  Most of us don’t take the full 10 days to decide who we want to strike from the panel.  But, the good thing is, there will be no more uncertainty on this point: now everyone knows exactly how much time you have to issue your strike, and the folks that issue their strike on day 14 don’t need to litigate the issue with the folks that issue their strikes on day 9.

On the subject of IMR, your humble blogger would much rather see an en banc confirmation that an IMR determination issued more than 45 days after the initial request is still valid and binding.  But, I guess your humble blogger will just have to wait, hope, and keep checking under the Soviet-non-religious-secular-new-years-tree.


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AB305 Headed to Guv; California Headed to Insanity

September 16th, 2015 No comments

Greetings, dear readers!

Do you ever sit back, with your feet on your desk, a fine scotch in your glass, and a puzzle dancing in your mind – why can’t we have nice things?  Well, dear reader, THIS IS WHY!

Assembly Bill 305 has passed both the Senate and the Assembly and is now headed for the Governor’s desk.  If signed into law, it would prevent apportionment of permanent disability to pregnancy, menopause, or, in the case of psychiatric injuries, sexual harassment, menopause, or pregnancy.

I’m sure the proponents of this bill see themselves as some sort of champions for the oppressed.  Certainly, it’s not fair that women face some difficulties not visited on men.  Surely, the world would be a better place if no one ever got hurt.  When people do get hurt, the world would be a better place if one’s sex did not exacerbate the burden such injury places on the injured.  Can’t we all think of ways the world could be a better place?

In fact, what we’re going to see is a further increase in the cost of labor in California.  Do you want to see the effect of such policies in the aggregate?  Take a look at data recently released by the IRS for 2012-2013.  California continues to see a dramatic decline in tax-generating population (and tax dollars as well).

What goes with these particular individuals, as they cross state lines? Jobs.  These are the jobs that generate revenue that keeps the government lights on and our absurdly horrible roads in one of California’s two favorite conditions – in need of repair or closed for repair.  California will continue to lose the jobs and services we all enjoy and rely on to other states (or to the abyss).

Or, we can look forward to having many of those jobs replaced by automation: Fast-Food will replace workers with kiosks; warehouses will replace workers with machines; even manufacturing will continue to go automated, as one company in Australia reported replacing 60 welders with 3 robots costing $150,000 each.  These results neither generate income tax revenue for state coffers, nor provide employment for humble bloggers of the workers’ compensation defense variety.

This insanity has to stop.  It is not unusual for California’s legislature to have absolutely no understanding of the difficulties faced by small businesses in keeping the lights on.  It is, however, a bit of a surprise that the same legislators are equally deaf to the difficulty labor is facing in finding work.  Minimum wage can be raised to $1,000 per hour, and PD benefits can be magnified 100 fold, but neither will benefits Californians who cannot find work.

Putting things in proportion, dear readers, I get it – the small increase this particular bill will cause in the cost of workers’ compensation coverage is not to blame for the difficulty that industries employing workers earning less than $100,000 per year are facing in California.  But, as stated before, it is a symptom of a disease, or, rather, a diseased mindset when it comes to how California functions.

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WCAB: IMR Need Not be Timely to be Binding

September 14th, 2015 No comments

Good Morning, dear readers!  Your humble blogger has missed you very much, and is so happy to be back on your screen and your e-mail in-box.  Just last week, as your humble blogger walked whistling to himself and thinking of more blog post to write, he was confronted with an angry crowd.  At first I thought it was a host of applicants’ attorneys, or possibly disgruntled lien claimants.  It actually turns out that a recent rage-a-holics anonymous meeting was abruptly cancelled because someone forgot to bring coffee and doughnuts, and your humble blogger just happened to be in the wrong place at the wrong time.

Freshly released from intensive care and after reading several notes that started apologizing and quickly escalated into threatening before calming down to apologizing again, your humble blogger is back and ready for action!

Today, I bring you the story that will warm the heart of anyone who loves IMR – the case of Arredondo v. Tri-Modal Distribution Services, Inc., recently denied review by the Court of Appeal.  Applicant’s case-in-chief was resolved via stipulated award with future medical care included, and, invoking this award, the primary treating physician requested authorization for medication, physical therapy, and a back brace.  Timely UR denied certification, and applicant appealed using the IMR process.  IMR, however, was not timely, having been requested on December 24, 2013, and only issuing an opinion on April 25, 2014, upholding the UR determination.

Applicant had scheduled an expedited hearing, and argued the IMR determination was invalid because it was untimely.  Labor Code section 4610.6(d) provides that “[t]he organization 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…”  By contrast, between December 24, 2013 and April 25, 2014 there are 122 days which, pending confirmation from your humble blogger’s accountant, appears to be more than 30.

Following a trial, the WCJ concluded that the WCAB has no jurisdiction to overrule IMR based on an untimely determination, reasoning that 4610.6(g) makes an IMR determination binding on all parties, and, furthermore, the bases for appealing an IMR decision are listed in section 4610.6(h), but limits the remedy upon a successful appeal to a new IMR determination.

In considering applicant’s petition for reconsideration, the WCAB noted that the time limit for an IMR determination is actually up to 45 days – 15 days to provide the relevant information to IMR, and another 30 days after the information has been provided.   However, the WCAB affirmed the WCJ’s “determination that the WCAB does not have statutory authority to disregard the IMR determination in this case…”

Under the WCAB’s reasoning, the legislature, in enacting SB-863, meant to have medical treatment determinations made by medical professionals only.  Furthermore, the effect of the language of 4610.6(d) is meant to guide the IMR determination, rather than to invalidate the effect of the decision.  In other words, 4610.6(d) has no effect if it is disregarded.

One commissioner dissented, however, reasoning instead that IMR should be treated much like UR – if it fails to meet the timeliness requirements as laid out in the relevant statute, it loses its immunity from WCAB review and the issue of medical necessity should be resolved by the WCJ.

Does this issue seem at all familiar, dear readers?  Because your humble blogger provided a post back in June – Saunders v. Loma Linda University Medical Group – that addressed a similar issue.  In that case, a split panel found that an IMR determination that came in five months after the UR decision was referred to IMR was NOT timely and thus invalid, granting the WCAB jurisdiction to determine whether the requested treatment should be awarded.

So… what’s the answer, dear readers?  Does IMR have to come back no later than 45 days after the initial request?  Or, can IMR let the injured worker languish and wait for medical treatment?  The split in opinion between these two panel cases appears to provide a reasonable basis to seek reconsideration.

But, here’s a scenario for you to consider.  UR denies treatment and the injured worker requests IMR.  When IMR doesn’t come back two months later, the injured worker files for an expedited hearing.  The WCJ rules that, because IMR is untimely, the WCAB has jurisdiction to determine if medical treatment should be awarded as requested, but also concludes that the reasoning articulated in the UR determination is persuasive and declines to award medical treatment.  Applicant seeks reconsideration, and the WCAB reverses, awarding the medical treatment instead.  Has the defendant lost its opportunity to appeal the determination regarding jurisdiction?

Have a good week, dear readers!

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WCAB Issues NOI To Suspend Lien Rep’s WCAB Privileges

September 2nd, 2015 2 comments

Hello, dear readers!

Your humble blogger wants you to quickly check your calendar – do you have an upcoming lien conference or trial with Professional Lien Services, Inc.?  Well, about that…

In its first, and possibly only, En Banc decision of the year, the WCAB has issued a notice of intention to suspend appearance privileges of Professional Lien Services.  Back in August of 2013, a WCJ ordered Professional Lien Services to pay a court sanction of $1,000, and to pay the defense costs of $2,355, for “pursuing a trial on the issues of penalty and interest when it did not offer evidence at the trial adequate to meet its initial burden of proof.”

Two years later, despite repeated efforts by the WCAB and defendant to get paid, the sanctions remain unpaid, and the WCAB appears to have had enough.

How often do you have to deal with this, dear readers?  Have you ever had a lien claimant threaten a baseless trial for the sole purpose of getting the defense to run up its bills?  “Pay me, or you’ll have to pay your attorney and keep your file open.”

In any case, dear readers, if you do have a hearing with PLS, you might expect to get stood up.  On the other hand, this isn’t such a bad thing – if the lien claimant has to scramble to get a last-minute lien representative, it may not have time to satisfy the requirements of Rule 10774.5(e)(4), which requires a non-attorney lien representative to have a Notice of Representation signed by the lien claimant – without this, the defense could move for dismissal for failure to appear.

Lien Claimant Failed Appear Wayne Meme

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60 Day Limit For QME Appointment ONLY For Initial Evaluation

August 26th, 2015 2 comments

What’s your favorite type of shopping, dear readers?  Do you love to show your hunter’s skills by pushing to the front of Christmas shoppers?  Or perhaps you like reaffirming your ancient gathering skills by shopping for a car – going from dealership to dealership until you’ve gathered just the right amount of savings.

Well, for us in the workers’ compensation world, it’s not practice guides or suit-cases we shop for.  It’s isn’t the best surgeon or the most efficient legal research program.  It’s doctor shopping that we love!


Every single practitioner trying to keep his QME (or AME) bemoans the practice of doctor shopping.  Every single practitioner trying to bounce a QME (or AME) can recite, by heart, any reason to challenge the QME/AME status and get another bite at the apple.  It’s not personal and it’s not specific to applicants or defendants.

In the case of Lopez v. Hemington Landscape, applicant sought to get a replacement PQME because the QME was unable to schedule a re-evaluation within 60 days of the request.  Regulation 31.5(a)(2) allows for a replacement panel when a QME can’t schedule an initial evaluation within 60 days (or 90 days if the applicant is in agreement), but is rather silent on the question of a re-evaluation.

Lopez contended that section 31.5(a)(2) should apply to initial evaluations and re-evaluations, which, if sustained, would have entitled the parties to seek a replacement panel.  The matter proceeded to trial and the WCJ found that the request for a re-evaluation is not an “initial request” which would normally start the 60/90 day clock to set an appointment (“cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment…”)

Other than pointing out that panel and discovery disputes are not final orders, and therefore not grounds for reconsideration, but rather removal, the WCAB didn’t provide much guidance on this issue.  Does the phrase “initial request” refer to an initial request for any evaluation, or, rather, does the initial request have to be only for the initial evaluation?

As noted by the WCJ, the applicant’s attorney pointed out that another WCJ in the same venue had recently found the opposite result: 31.5(a)(2) applies to ANY evaluation.

There are valid arguments on both sides of this interpretation, of course.  On the one hand, there’s a strong policy militating against doctor-shopping.  The reasons to bounce a QME and get a new panel should be fairly narrow, no? After all, if a party gets a bad report (“counsel, I’m medically certain that the nail-gun shooting a nail into his head is industrial…”), it need only wait until it hears the PQME is busy, then request an evaluation and get a new panel.

On the other hand, imagine this scenario: the QME doesn’t set a re-evaluation date… EVER…

Seriously – what’s to stop a PQME from declining to see an injured worker for 6 months? A year? Realistically, it’s probably not going to happen, but it seems like the point in these regulations is to help move these cases along.  Remember, dear readers, it’s not like we can just go out and get our own experts – such a system would be crazy and totally unheard of!

If a QME can’t get his report in on time, bounce him and get a QME who can.  If a QME can’t see the injured worker on time, bounce her and get one who can.  What is the distinction between the initial evaluation and the re-evaluation?

At this point, your humble blogger’s spirit has been broken by worker’s compensation to the point that he’s fine with either result.  He’s not looking for justice or even reason –  just guidance as to what the rule is so we don’t have to have more trials on this little point.

What about you, dear readers?  Would you prefer a world full of rainbows where a QME has to set initial and re-evaluation appointments within 60 days?  Or would you prefer a land of unicorns where a QME can set re-evaluation dates at his or her convenience?  Or would you prefer a world much like our own, only with some clear-cut guidance one way or another?

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WCAB: UR Decision Com. To PTP’s Office; Not Nec. PTP

August 24th, 2015 No comments

Your humble blogger has long been an advocate of improving service and communication among the various players in our little workers’ compensation game.  To that effect, I’ve encouraged various legislative organizations and even the Governor to recognize, like in days of old, the elegance and efficiency of using carrier pigeons to communicate.  For whatever reasons, my phone calls (and carrier pigeons) have not been returned.

The thing is, that we’re no longer operating in small, one-person shops.  Doctors aren’t processing paperwork and installing anti-virus software themselves – there’s support staff: assistants, secretaries, etc.  Apparently, doctors aren’t even managing their own carrier pigeon coop.  Some day, dear readers… some day…

So, when the modern regulations or statutes refer to service on or a communication with a physician, is it enough to communicate a document to the physician’s office, or must the document be hand-delivered to the physician him or herself?

In the case of Gutierrez v. Bigge Crane & Rigging Co., applicant’s primary treating physician requested authorization for some prescription medication.  However, although UR recommended that authorization for the treatment be denied, the WCJ found that the UR decision was not timely communicated to the PTP, and the UR was deemed invalid.  The WCJ then determined that the treatment was reasonable and necessary and ordered it to be provided to the applicant.

The record apparently does not include any proof that the UR determination was communicated to the PTP within 24 hours, as required by section 9792.9.1(e)(3), but only has a letter documenting a conversation between the UR physician and the PTP’s assistant (or possibly the PTP as well).

In affirming the WCJ, the WCAB held that a defendant meets its burden by communicating the decision to the PTP’s office, rather than solely by communicating it to the PTP him or herself.  However, in this case, there was not enough documentation in the record to support such communication.

In your humble blogger’s practice, sometimes I have observed applicants raising the argument that, although a document reflects that it was faxed to  a PTP, there’s no proof that it actually was (especially when the PTP’s office has little to no incentive to produce a timely facsimile log).  Which is why, yet again, your humble blogger is pushing the carrier pigeon idea: the pigeon will be ready to testify under oath…

Perhaps UR vendors should include fax confirmation reports with their UR transmissions to the employer, insurer, and defense attorneys?  Or, better yet, perhaps the Department of Industrial Relations can apply its vast and endless influence to require all physicians who wish to treat industrial injuries to register and maintain a valid e-mail address as a means of receiving communication and UR notices.

But, then again, perhaps some people don’t want an easy-to-use and easy-to-verify system of communication.  After all, the harder you make it for UR to communicate the decision to the PTP, and the harder you make it for the defendant to prove that UR communicated the decision to the PTP, doesn’t it get easier for the PTP do perform the treatment he requested?

In any case, as per the Guttierez decision UR determinations must be communicated to the requesting physician’s office rather than the physician.  What are your thoughts?  I’ll be looking for your pigeons on the horizon with your comments…

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