WCDefenseCA

There are cases that close quickly.  There are cases that close after a lot of fighting.  There are cases that outlive lawyers’ and adjustors’ careers.  And then there is this case.

The matter is Jack Oday v. Wickes Lumber, where applicant sustained an injury to his back in 1979, and the matter was resolved by way of stipulation with open future medical treatment.  Some 32 years later, applicant had a new primary treating physician who was prescribing a laundry-list of treatment for a laundry-list of injuries and conditions, including “anemia, high blood pressure, symptoms related to non-industrial hip surgery, and arthritis in his back and hip, unrelated to his industrial injuries.”

The defendant obtained a supplemental report from the old PTP, who disagreed with the new PTP’s prescriptions and noted the endless other conditions completely unrelated to applicant’s 1979 injury and the resulting award for medical treatment.

The WCJ declined to order applicant to submit to a medical-legal evaluation, and also found the old PTP’s opinions to be not substantial evidence, given that there was no re-evaluation, just a review of 30-year-old medical reports and more recent ones.

Ordered to provide medical treatment, the defendant petitioned for reconsideration and the WCAB granted.

The reasoning is fairly simple: the applicant must submit to medical-legal evaluations upon a defendant’s request, and the workers’ compensation Judge should develop the record and have the primary treating physician clarify which treatment is for which condition.

Interestingly, though, the WCAB recommends that the parties utilize an Agreed Medical Evaluator for a medical-legal evaluation.  In practical application, this AME could only determine what conditions exist and whether they were caused by any industrial injury.

Presently, the issue is medical treatment, an as my dear readers will recall, Agreed Medical Evaluators can no longer weigh in on medical treatment (See Labor Code section 4062.2).  In short, the primary treating physician will have to specify which treatment is for which condition, and then run the gauntlet of Independent Medical Review.  Your humble blogger does not envy the IMR physician who will collect a flat fee to review 32 years of medical treatment records. Please note, the WCAB’s opinion is from May 28, 2013, and as this is a pre-1/1/13 injury, IMR would not have become mandatory for another month.

There was a dissenting opinion, however, reasoning that the defense should not receive the benefit of Reconsideration when it failed to follow proper procedure.  The dissent would have the defendant object to the new primary treating physician’s report and invoke the panel QME process.  The dissent would have also had the defendant use Utilization Review, although it is unclear why Utilization Review would be relied upon when there is an AOE/COE issue as to the body parts and conditions.

Now, bear in mind, dear readers, until your humble blogger had a chance to review the WCAB’s opinion in this case, I was actually inclined to side with the Applicant.  Hey, where did all my readers go?

For the six applicants’ attorneys that are still reading, I shall explain my otherwise unforgivable position.  Medical treatment is a continuing right for an injured worker under a stipulated award, and methods of medical treatment change.  Technology improves, new procedures are available, and old methods are sometimes proven to be unsafe or ineffective by today’s standards.

And, when you read the WCJ’s report, you really get the impression that the old medical evaluator is just some paper-pushing M.D. who is defending his opinions out of pride.

But, when you read the WCAB’s opinion, you get a very different picture.  You become aware of the fact that there were other injuries, that the old evaluator justified his position through a causation analysis, and that the new treating physician failed to justify his own.

In any case, perhaps this would be a good time for the parties to reach a settlement agreement as to future medical treatment and empty their respective filing cabinets from this one file.