WCDefenseCA

Lexis has a great blog post about Labor Code section 4061 and the timeline for a request for a panel.  Labor Code section 4061 subsection (b) provides an opportunity for the employee or the employer to object to a determination of a medical treatment with respect to the existence or extent of permanent impairment or limitations or the need for continuing care.  But, for whatever reason, there is no time limitation imposed upon the parties for when to object.

An applicant on the receiving end of an adverse utilization review report has 20 days, if represented, and 30 days, if unrepresented, to object.  (Labor Code section 4062)  But what about objecting to a treating physician’s determination with respect to whether an injury has been sustained at all, or the extent of the disability caused by the injury? (Labor Code sections 4060 and 4061)

The Lexis post brings to light the case of Kathryn Benson v. City of San Diego, in which a split panel ruled that applicant’s request for a panel under Labor Code section 4062.2, three years after being declared permanent and stationary with no impairment by her treating physician,  was timely and the PQME report was admissible.

Defendant argued that the request was untimely and that applicant should not be able to revisit a treating report that had so long rested undisturbed.  In reviewing the arguments, the workers’ compensation Judge relied on the case of Strawn v. Golden Eagle Insurance Co., a 2000 panel decision.  In that case, the panel held that a 4-month wait to obtain a Qualified Medical Evaluator was unreasonable.  Although there is no express time limitation, an objection must be made within a reasonable amount of time.

The split panel in the Benson decision rejected the WCJ’s reasoning, relying instead on the facts of this case Benson case.  Of particular note was the fact that applicant wanted to return to full duty and was following the treatment regimen of the treating physician.

However, the panel does note that “[o]ur conclusion in this case does not mean that there are no circumstances under which a QME report should not be allowed into evidence because of unreasonable delay in objecting to a treating physician’s opinion.”

It can be so difficult to watch the clock waiting for applicant’s right to request a panel evaporate slowly… slowly… and never knowing when that poisoned well is really dry.

So what can a defense attorney do to keep a panel request from coming out of the wood work?  Well, here are some factors to consider:

• Have 20 or 30 days passed since the treatment report issued?  Although there is no firm restriction of 20 or 30 days (depending on applicant’s representation) for 4060 or 4061, the 20/30 time limit certainly provides grounds for what the legislature considered “reasonable.”
• What is the reason for the delay?  Was the applicant being strung along, as the WCAB found in this case, or is this simply a case of workers’ compensation laches.
• Is the applicant a repeat player?  Is it reasonable for a person who has had workers’ compensation claims in the past, claims that have run the gauntlet of the workers’ compensation system.  An applicant that has been represented in the past has no reason to claim that he or she didn’t know the benefits of hiring an attorney.  And, once the applicant is represented, there should be no excuse for a failure to timely object and request a panel.
• Has the defendant sustained some sort of prejudice because of the delay?

Do you have a story where you’ve tried this argument one way or the other?  Was the result unreasonable? Unreasonably unreasonable?  Or perhaps reasonably unreasonable (it is comp, after all!)