WCDefenseCA

The Workers’ Compensation Appeals Board has issued yet another en banc Messele case, this time deciding that its prior decisions will only apply prospectively, and not retrospectively.  You can read the full opinion here.

In other words, if you were used and abused by the Medical Unit in the past, stuck with an improperly issued panel, you have no recourse but to try to reason out some valuable life lesson to be gained from the experience.  But in the future, at least in theory, the Medical Unit will be required to abide by the strict timeline outlined by the WCAB.

Aside from my cynic compulsion to doubt the happy endings promised at the start of every endeavor, I honestly don’t see much changing in how the Medical Unit does its work.  In six months, the medical unit will again start issuing panels without reviewing applications and say that they simply have too high a volume to review and reject wrongly filed requests.

Then, defendants and applicants will each get a panel and the defendant will have to file a Declaration of Readiness to Proceed to Hearing in order to get the applicant’s attorney’s improperly made request for a panel out.

In other words, learn the new dance, same as the old dance.

Previously, your humble blogger had reported the decision of Messele v. Pitco Foods, where the Workers’ Compensation Appeals Board, in an en banc opinion, attempted to provide some clarity as to the proper timeline for using the panel qualified medical evaluator system.

You read the opinion.  You understood the opinion.  You were prepared to move on with your life.  Now there’s more.

The WCAB has issued another en banc opinion, in this one stating that “it was not [their] intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers’ compensation proceedings.”

While the decision currently stands, the WCAB has proposed making it apply prospectively only.  In other words, if the panel was issued outside of the proper timeline, and a party did not object before September 26, 2011, the panel stands.

In case you’re wondering, the WCAB would like to know what you think – you can submit written comments so long as they are received no later than November 19, 2011 by sending them to the Workers’ Compensation Appeals Board, Office of the Commissioners, at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its Post Office Box address (P. O. Box 429459, San Francisco, California 94142-9459).

Shall all the past be revisited and re-litigated?  Or shall well simply continue down the yellow brick road as if the Medical Unit has done no wrong?  We can hopefully expect some finality on this issue in a month or two.

In the meantime, I suggest getting cozy and familiar with the procedures outlined by the WCAB – the rules allow the players who know them to control the PQME specialty and, very likely, the outcome of the case.

When your faithful blogger knows more, so will you.

A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

A recent writ denied case highlights the importance of diligently reviewing and thoroughly understanding the medical basis for the opinions of evaluating physicians.

In the case of Daniels v. Workers’ Compensation Appeals Board, defendant petitioned for reconsideration of the Workers’ Compensation Judge’s order and award of 70% permanent disability for applicant’s injury.

The WCJ awarded applicant 65% PD for the orthopedic spine injury and 10% for his alleged psyche injury, combining the two for a 70% award.  One should note that at 70% permanent disability, applicant becomes entitled to a pension, so there is a big step between 65% and 70%.

Because this is a 2002 injury, each party retained their own Qualified Medical Evaluator instead of going through the panel process.  Defendant’s psyche QME found no ratable psyche injury, based on two evaluations and using the 8 work functions of the 1997 rating schedule.  Applicant’s psyche QME, to the surprise of no one, found impairment in all eight of the functions.

However, at trial, cross examination of the applicant revealed that there was little to no impairment to any of the 8 work functions associated with the alleged psyche injury.

Although the WCJ found that the opinions of the defendant’s QME were “better reasoned and more persuasive” than those of the applicant’s QME, using the “range of evidence” in her instructions to the DEU the WCJ achieved a 10% psyche rating, coming to a total impairment rating of 70%.

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration, reasoning that applicant’s QME’s report did not constitute substantial evidence, and therefore the WCJ was mistaken in relying on his report.

Often times enough, practitioners in the world of California’s Workers’ Compensation hesitate to roll up their sleeves and deal with the dirty details of medical reporting.  This isn’t always a case of laziness – sometimes there is concern for billing needless hours in a seemingly futile (or slam dunk) case.  The details of the medical reports are where the fighting needs to take place – skipping to the conclusion section will also skip over the best arguments and the best chances of defeating or defending a medical report.

The California Workers’ Compensation Appeals Board has issued a new en banc opinion on the issue of timeliness of panel requests.  In Messele v. Pitco Foods, Inc., the defendant objected to the treating physician’s report and proposed the use of an Agreed Medical Evaluator to applicant, setting up the requirements for a request for a panel in accordance with Labor Code § 4062.2(b).

Applicant responded with his own AME proposals and then requested a panel.

Defendant then filed its own request for a panel.  The timeline was as follows:

Date of Injury———————————1/29/10

Defendant’s Objection ****************4/20/10

Applicant’s AMEs—————————-4/26/10

Applicant’s Panel Request *************5/01/10

Defendant’s Panel Request————-5/04/10

The Medical Unit, no longer resolving disputes, issued a panel in response to each request, with different specialties.  The Workers’ Compensation Judge ruled that the 5-day “mailbox” rule of the Code of Civil Procedure (§ 1013(a)) applies, and that applicant’s panel request was untimely, so defendant’s panel stands.

For the folks keeping score at home, the first day the panel request could have been filed would have been May 6 (April 20 + 10 days is April 30; plus 5 days for mailing is May 5, so the first day a panel could be filed is May 6.  In the WCJ’s report and recommendation on applicant’s petition for removal, the WCJ acknowledges this error and recommends that both panels be found premature.

On a petition for reconsideration, which the WCAB found should have been a petition for removal, applicant’s petition was granted and the WCJ’s order was rescinded.  The WCAB found that CCP § 1013(a) and 8 CCR § 10507 require the application of the “mailbox” rule to the process of panel requests.

Applicant’s argument that the mailbox rule doesn’t apply and defendant’s argument that the controlling date is when the Medical Unit received the request, not when it was made, were both rejected.  The rule applies and the controlling date is the date the request for a panel is made.

What does that mean for us in the industry?  Once an objection to a primary treating physician’s report has been made by either side, fill out a panel request form dated for the sixteenth day after the date of the objection.

So if the objection was made on November 1, 2011, the counting begins on November 2, 2011, and the panel request form should be dated for November 17.  As soon as November 17 comes around, the panel request should be in the mail, in order to be the first one in and thereby control the specialty.

As yet another aside, the rules clearly state that the specialty of the panel should be the same as that of the treating physician unless documentation is provided for a good reason to the contrary.  But, in terms of practice, this rule of often enough ignored by the Medical Units and the WCJs alike, and it is much better to be the first to request a panel.

Ever since the decision in Alvarez v. Workers’ Compensation Appeals Board  the issue of ex parte communication with a qualified or agreed medical evaluator, as prohibited by Labor Code § 4062.3 has been a cloudy one.  The very language of the Alvarez opinion (“an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable”) leaves nothing more to grasp at than mist when one puts himself to the task of defining what is, and what is not, ex parte communication.

In the recent case of Morales v. Workers’ Compensation Appeals Board, the Court of Appeals denied a petition for writ of review of a decision touching on this topic.

The skinny:  providing the remedy of a replacement panel for applicant’s act of sending medical records to the a Qualified Medical Evaluator and only one of two defendants does not prejudice the applicant, nor is it a final order.

In this case, after the Workers’ Compensation Judge ordered a new panel to issue on defendant’s motion, applicant’s attorney petitioned for reconsideration or removal.  The petition for reconsideration was denied as the ordering of a replacement panel was not a final order.  The petition for removal was denied because applicant failed to show any prejudice from the WCJ’s order.

The facts of this scenario present some interesting questions regarding the right to a new panel.

The ideal outcome for co-defendants can be mutually beneficial, such as a favorable judgment regarding causation, extent of impairment or apportionment.  For co-applicants, such as competing dependents in a death claim, there is only one pie, and it can only be sliced so many times.

Let’s assume the last QME standing after the panel selection process is known to the defense community to issue high-rating reports.  Seeing that this panel QME is not good for either defendant, could one of them send an ex-parte communication to allow the other to demand a new panel?  Or, without planning it, could one defendant accidentally forget to serve the other, the way an applicant might not serve a second defendant, as appears to be the case in Morales?

The ethical implications of this tactic are questionable at best, but the thought does present an interesting question regarding the inner workings of the new-panel remedy.

In any case, absent a settlement, I expect we will see the case of Morales v. Workers’ Compensation Appeals Board again.

It’s hard to be a California Workers’ Compensation defense attorney and not become a little cynical.  After all, the California legislature dangles a carrot in front of you, and just as you’re about to bite, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, or even the higher-ups in the judicial branch yank it away.

At the moment, I’m brooding over the case of Denys-Peck v. Sonora Surgery Center.  There, applicant braved the workers’ compensation system alone, and ended up with a panel Qualified Medical Evaluator finding her various body parts either non-industrial or without a ratable impairment.

Applicant then called in the cavalry, and her attorney demanded a new panel.  Now, if you’re a regular reader of my humble post, you know that Labor Code § 4062.1 specifically prohibits an additional evaluation in cases where a formerly unrepresented applicant becomes represented after already having an evaluation.  Can’t you just taste that juicy carrot that the legislature is dangling?

Here is where the carrot gets yanked away.  Applicant and her attorney claimed cumulative trauma to the same body parts (and one more, the knees).  Then they demanded a new panel for the cumulative trauma.

The WCJ ruled and the WCAB affirmed that the applicant must return to the first QME for the specific injury but can have a new panel for the CT.

With the same body parts injured, the applicant effectively gets a second panel, now that she is represented.  Hopefully, an appeal will see this position adjusted – the legislature clearly expressed its hostility to QME shopping and repeat attempts at an evaluation.  Simply pleading the same body parts over a cumulative period to get a new QME flies in the face of the law.

For now, the best the defendant can do in this case is to minimize the damage dealt by the second panel.  Other than that, just sing the carrot song to make it all better.

Have you heard the one about the applicant who tried for two bites at the apple?  The story goes like this:

The applicant claimed an injury.  His treating physician found relatively limited permanent disability, and the impairment he sustained was mostly not industrial in causation.  So he demanded a panel and got a list of three physicians.  He picked one (perhaps randomly, perhaps after an internet search of each doctor’s name).

The Panel Qualified Medical Evaluator confirmed the treating physician’s diagnosis, and the defendant-employer/insurer issued a denial notice.  So the applicant decided to call in the cavalry and lawyer up.

By the time this case reaches the applicant’s attorney’s desk, the applicant has painted himself into a corner.  With the treating physician and the PQME both finding against most of his claim, there is only one course of action – get a new panel, of course!

In California’s Workers’ Compensation system, the law is clear: only one bite at the apple.  Labor Code § 4062.1 specifically states: “[i]f an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to an additional evaluation.”

So applicant’s attorney will try to find some defect with the panel or some defect with the defendant’s conduct while applicant was unrepresented, and demand a new panel based on this.  Don’t let him get away with it!

Labor Code § 4062.3(f) gives applicant one of two mutually exclusive choices: either proceed with the evaluation as scheduled or demand a new panel.  Once applicant has set foot in the PQME’s office, the panel gravy train grinds to a halt (or should, at least, if the law has any control over the matter).

When applicant has waived every right to a new panel and proceeded with that initial evaluation, the fallback argument for the applicant’s attorney involves the following: “But my client didn’t know his rights! No one advised him!”

At that point, you take out your letters and benefits notices sent to applicant, showing the form language “you have the right to consult an attorney, etc., etc.” and you’re (hopefully) home free.

In any case, the defendant has already paid for one evaluation and had zero input on who the PQME would be.  After all, in unrepresented cases, no party gets to strike a PQME, the applicant just chooses one.  (Labor Code § 4062.1)  One bite out of defendant’s budget is plenty.

I’ve encounter some other arguments for why a formerly unrepresented applicant deserves a new panel, but that is material best left for another post.

As always, dear readers, your humble author wishes you luck in your coming trials, in court and out, and hopes this modest article has provided some assistance.

The stars have finally aligned – you got a panel with a known defense doctor, a known applicant’s doctor, and a doctor completely unknown to both sides.  Why does that mean the stars aligned?  Because, just this once, that unknown doctor, the one left standing after the panel process, gave you a slam-dunk report!

Applicant’s counsel, unsurprisingly less than content with an attorney’s fee of 15% of nothing, has written to the Panel Qualified Medical Evaluator to request a supplemental report.  You smile to yourself as you read the applicant’s attorney’s letter, knowing that the QME is not going to budge and you’ve dodged a major bullet.

In California Workers’ Compensation practice, if something seems too good to be true, it probably is.  This goes doubly so for the defense.  Naturally, day sixty passes without the QME having produced a supplemental report, and applicant’s attorney is ready on day sixty-one with a demand for a new panel.

California Code of Regulations, title 8, § 38(a) provides a remedy for initial or follow-up comprehensive medical-legal evaluation reports not submitted within thirty days of the evaluation.  That remedy is a new panel.  But in terms of supplemental reports, governed by subsection (h), what if there is a report submitted after the sixty days allowed?

The section itself does not provide a remedy, nor is there one to be found in the regulations for late supplemental reports.  What’s the answer?  Should the applicant get a new panel?

In the case of Gwen Lloyd v. County of Alameda, the Workers’ Compensation Appeals Board adopted and incorporated the opinion of the Workers’ Compensation Judge, granting applicant’s petition for a new panel.

The facts were similar to those described above.  The WCJ recognized that no remedy specific to supplemental reports could be found in the regulation, and decided the case on policy: the anti-doctor-shopping policy offered by the defendant and the anti-delay-policy offered by the applicant.  The applicant’s policy proved the stronger, and the WCJ cited the need to speed up the process of benefits for the applicant.

In other words, if you have a QME who has given you a bad report, send him or her a supplemental report request and prepare your demand for a new panel.  If the supplemental report is not in your hands at 4:59 p.m. on day sixty, it’s time to file a demand for a new panel at 9:00 a.m. on day sixty-one.

There are a few issues raised by this case that are not addressed by the WCJ’s opinion, nor by the WCAB’s adopt and incorporate order.

Issue One – what if the applicant had received the doctor’s report on day sixty-one, read it, and then demanded a new panel on day sixty-two?  The opinion does not address the issue of whether a late report must also be un-submitted to trigger this new-found remedy of a fresh panel.

Issue Two, which doesn’t seem to concern too many minds in the Workers’ Compensation world, is the purse of the defendants.  At any given point in a case, the defense may have already paid for evaluations, supplemental reports, record reviews and depositions (not to mention the attorney time that goes along with all of these steps in the process).

Will the WCJ issue an order to disgorge these costs from the slow-responding QME?  Or must the defense now expand its reserves to account for the second, third or fourth QME until a doctor can be found whose Hippocratic oath does not commit him to making patients wait?

One way to side-step this new QME-killer is to stay on top of the QME.  If you or the other side has requested a supplemental report from a QME good for the defense, once you hit day 30, you need to send weekly letters asking for that supplemental report.

As for a QME that isn’t too friendly towards the defense, perhaps one should stay quiet until day sixty-one and then quickly file a petition for a new panel?

As an aside, the WCJ writes that she does not know the difference between a “follow-up” report and a “supplemental” report as contemplated by the regulation.

I was always under the impression that follow-up pertained to a report produced after an in-person evaluation, such as when the QME evaluates an applicant, and finds applicant is not yet permanent and stationary.

The supplemental reports are document-based, with no interaction between applicant and the QME, and produced in response to a letter asking additional questions.  Thus, the former is due in thirty days and the latter in sixty.

Does anyone have a different take?  Comment or shoot me an e-mail with your thoughts:  gregory.grinberg@htklaw.com.

These finer issues are sure to be re-litigated in the future.  In the meantime, however, your humble author wishes you a sharp eye on your case-file, a wary sentry on your calendar, and, as always, good hunting.