How would you like to send your injured worker to a physician of your choice for a thorough examination?
Labor Code section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense. However, are these reports of any use?
First off, let’s talk about the good. Section 4050 allows you to get an injured worker before a physician you trust, and get a thorough evaluation going. What’s more, it’s an opportunity for you to have your own expert witness prep your attorney for the cross examination of a QME or AME that might decide to get creative with his or her own report. Although we defense attorneys possess “Juris Doctorate” degrees, we typically welcome all the help we can get with the medical mumbo-jumbo.
In fact, in the panel case of Lopez v. Target Corporation, from way back in 2012 (you remember 2012, don’t you? The year before SB-863 took effect in full…) held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.
Here’s another fun fact: if you suspect your injured worker of lying, a 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa. And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, the local law enforcement folks should have no such reservations.
Additionally, section 4053 provides that “[s]o long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.” Your humble blogger doesn’t need to tell you the benefits of a missed appointment.
And, on top of everything else, this is a guaranteed spot for your sub rosa guys to meet the injured worker and follow him or her around. Wondering where he’s working? Wondering what she’s doing with her spare time? Now you’ll know where and when the injured worker will be for your hounds to pick up the scent.
Now, let’s talk the bad.
California Code of Regulations section 35(e) purports to limit the reports that can be sent to a PQME, namely prohibiting “any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge.”
In Marciano v. Ameriflight, Inc., a 2013 panel case, the WCJ ordered that a 4050 report shall not be provided to a QME because section 35 is the authority on what documents can be sent to a PQME, citing § 35(e). The WCAB adopted and incorporated the WCJ’s report.
But, don’t get discouraged. 35(e) provides that the WCJ can still rule on admissibility, and if the report itself merits it, perhaps just such a ruling could be obtained (hope springs eternal).
What do you say, dear readers, have you had any luck with 4050 exams?