In a recent case, the Court of Appeal denied applicant’s petition for a writ of review following the Workers’ Compensation Appeals’ Board’s denial of her petition for Removal from the workers’ compensation Judge’s order taking a case off calendar after a Mandatory Settlement Conference (say that sentence ten times fast!)

Here’s the skinny – applicant filed a Declaration of Readiness to Proceed, content with the available medical reports and ready to take the matter to trial.  Additionally, the defense had failed to issue a denial within 90 days of knowledge of the claim, so the injury was presumed compensable.  The defense did not object to the DOR, but did send an offer to use Agreed Medical Evaluators in this case to a random applicant’s firm (not the one representing the injured worker).  When no response came from the applicant’s firm that had nothing to do with the case, the defense requested a panel.

By the time the matter arrived before a Judge, applicant was ready to go.  Bring on the trial – this will be a slam dunk!  But defendant answered that it had requested a panel and was trying so gosh-darn hard to develop the record, couldn’t the matter go off calendar until a QME had a chance to look this case over?

Applicant was not pleased… she immediately argued California Code of Regulations section 10251(d) specifically states that the failure to object to a DOR is a waiver of objection to the DOR, and the matter should stay on the calendar.  At the very least, the matter should go to trial on the issue of presumed compensability…

The WCJ didn’t agree.  He found that the defense had acted with due diligence in procuring an additional evaluation (through the PQME process) and because judicial economy outweighs trying threshold legal issues before others, the matter was taken off calendar, and defendant got to triumphantly drag applicant to a QME evaluation.  And they all lived happily ever after…

Having trouble believing it?  Then I guess you’re not interested in the bridge I have for sale.

The real case happened in a similar fashion… just the roles were switched.  The parties made it to MSC without an objection to defendant’s DOR ever having been made by applicant.  The defendant even had what seemed like a solid Statute of Limitations defense.  But the WCJ ordered the matter off calendar and allowed applicant to proceed to a QME evaluation based on the due diligence of applicant’s AME proposals sent to a defense firm unrelated to the case.

The WCJ, in his Report and Recommendation, reasons that by denying defendant the right to take to trial the issue of the statute of limitations defense, the defendant is not exposed to undue prejudice or irreparable harm.  But this isn’t the case – even though the defendant is likely entitled to a total defense based on the statute of limitations, the defendant is instead going to have to shell out cash for medical-legal costs, deposition costs, and, (dare I point this out?) a bigger defense attorney bill (zealous and competent advocacy does not come free, after all…).

Your humble blogger has had cases referred a few days before the MSC, with no opportunity to depose the QME (or in some cases go to a QME) and the time having passed for an objection to applicant’s DOR.  Needless to say, your humble blogger found the Board less receptive to his due diligence in what little time was available.  But, then again, your humble blogger zealously represents workers’ compensation defendants.