Greetings, dear readers!
As much as it pains your humble blogger to allow his oft-cited and sometimes cursed pages to fall silent for so long a time, justice will not serve itself, and your humble blogger is always ready to answer its calls. (Fear not, dear readers, your subscription fees are being refunded even as you read this…)
Anywho, I have returned, in this case, to help the Workers’ Compensation Appeals Board deliver a very important message: verified means verified. By contrast, “verified”, as used by the Labor Code and the California Code of Regulations, does not mean “not verified”.
The case on point is that of Torres v. Contra Costa Schools Insurance Group. Mr. Torres sustained a few injuries and was the receiving medical benefits, including but not limited to Duragesic patches (pain meds). At one point, a UR review denied authorization for more patches, as it had requested (but not received) additional information on why this particular medication was being recommended.
A UR denial went on to an IMR review, which held firm the reported 80% UR affirmation rate, and likewise denied the treatment.
Not deterred, applicant pursued the additional remedies available under Labor Code section 4610.6(h), seeking to appeal the determination of the administrative director (IMR). However, applicant failed to provide a verified petition, as required by 4610.6(h) (“[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal…”).
So, then, dear readers, what’s to be done?
Defendant sought dismissal of this appeal, as applicant had failed to provide a verified appeal. After all, California Code of Regulations section 10450 provides that “[a] request for action by the [WCAB] … shall be made by petition” (subsection (a)); and “[a]ll petitions and answers shall be verified under penalty of perjury … [a] failure to comply with the verification requirement constitutes a valid ground for summarily dismissing or denying a petition…” (subsection (e)).
Having weighed the issues, the WCAB decided to provide a “significant panel decision,” allowing applicant 20 days to submit a verified petition to challenge the IMR determination. Now, of interest here is that the WCAB acknowledged that a failure to verify a petition is not automatic cause for dismissal, so long as the submitting party cures the defect within a reasonable amount of time after it is pointed out.
Furthermore, as this is all relatively new, some slack has been cut, especially considering the ever-present interest of deciding cases on their merits rather than on legal technicalities.
If the WCAB is going to allow the party to cure this defect on a regular basis, then perhaps the workers’ compensation community needs to approach this in a new way. Instead of allowing an unverified petition to be dismissed, perhaps the parties should immediately point out the defect in writing as soon as the petition (or answer) is received.
That way, should this pointed-out defect be ignores, or of procrastination should get the better of your opponent, you can point the fact out to the reviewing Judge, who will then have a basis to dismiss the unverified petition.
Just a thought, dear readers, just a thought.