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WCJs Are Not To Act as Advocate for Represented Party

October 14th, 2013

Welcome back from your weekend, dear readers.  I know we it has become a cultural norm to hate Mondays, so I bring you this special treat that will surely lift your spirits and restore some faith in humanity that is forgivably lost from repeated exposure to California’s workers’ compensation system.

The case is that of Adam Truitt v. County of San Diego.  Deputy Truitt was employed by the San Diego County Sheriff’s office for over 20 years, during which time he sustained an injury in the form of Lyme disease.  After a trial, based on the reports of the primary treating physician and the qualified medical evaluator, applicant was found to have sustained a 0% permanent impairment with a need for future medical treatment.

Effectively, the Lyme disease caused some symptoms, but did not in any way impair applicant’s ability to perform his job duties.  However, there was a concern, expressed by the primary treating physician, that the stress of applicant’s job could cause flare-ups and worsening of the Lyme disease.

The panel QME did, however, provide an Almaraz/Guzman rating of 24% whole person impairment, but this finding was rejected by the workers’ compensation Judge because the panel QME did not provide sufficient reasoning or justification for an A/G rating, nor did he explain why the particular rating he provided was appropriate.

The split panel affirmed the WCJ’s decision, but the dissent would have had the matter returned to the WCJ to develop the record.

Dear readers, your humble blogger does not expect his sensible and honest readers to stand and cheer because a sheriff’s deputy got Lyme disease.  Instead, the reason to celebrate is the Judge’s opinion.

In his report and recommendation on petition for reconsideration, the WCJ addresses the issue of his declination to order development of the record after the QME failed to meet the requirements of an A/G rating.  “This may appear to be harsh (sic) result in this case, but it is not the WCJ’s responsibility to correct the shortcomings of the doctor’s report, when the applicant is properly represented by competent counsel.”

In other words, the applicant could have deposed the QME or asked for a supplemental report, all on the defendant’s dime, but failed to do so.  The applicant could have objected to a Declaration of Readiness to Proceed, or brought up the issue of developing the record at the MSC.  But that’s not what happened.  Applicant rolled the dice and tried his luck at trial, and lost.

Your humble blogger’s favorite part of the report?  “It is not the role or responsibility of the WCJ to further develop the record when in so doing, the WCJ then becomes the advocate for a party, especially when the party is represented by ostensibly competent counsel … There is no doubt that applicant has a serious medical condition.  However, it is not the responsibility of the WCJ to step in and become an advocate.  That responsibility lies with applicant’s counsel.” (Emphasis added, with pleasure.)

That last part should be chanted as a mantra for every potential attorney that ever even thinks about entering the world of workers’ compensation, long before aspirations to the WC Bench appear.  The Judge is not an advocate for a represented party – the advocate is the advocate for a represented party.

So, the takeaway from this case?

Evaluating physicians must meet the requirements set out in A/G to have an admissible alternative rating; and

The proper role of the Judge is not to be an advocate for one party or another.  Otherwise, we can expect the Workers’ Comp hearing rooms to look like this:


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