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Citeable Authority For a Time Limit on LC 4061 Objections?

So, there you are, smiling at the Heavens as they have given you the perfect Primary Treating Physician report.  It is exactly what you were hoping for in a situation like this – the PD rating is conservative, the work restrictions are light enough to be accommodated, and there is even a great discussion of why Almaraz/Guzman does not apply.  In fact, the injured worker was so persuaded by this super-star PTP that he didn’t even bother requesting a panel.

Then, of course, his cousin got hurt at work, and faced a similar situation, but his cousin’s lawyer requested a panel, and the QME opinion, though shoddy and poorly supported, found a lot of PD and heavy work restrictions for his cousin.  Your injured worker reasoned that he better lawyer up and get a panel, because, as his cousin put it, he’s “leaving money on the table.”  After all, who wants to work for a paycheck?

My dear readers will recall a post on this subject back from the sunny July of 2012 – we were all so young back then!  The two cases were both panel opinions – Benson v. City of San Diego and Strawn v. Golden Eagle Insurance Co.  In Benson, the split panel found that there was no time limit for the injured worker to request a panel of QMEs following an adverse PTP report with respect to work restrictions or permanent disability.  Strawn, on the other hand, held that a defendant had waited too long (six months) to object and get a defense QME report (this case is back from the year 2000).

Well, you’ve got these two panel opinions, neither one of them binding, wouldn’t it be nice to take the wind out of Benson’s sails and put some teeth into Strawn’s jaws?  Your humble blogger has a humble proposal for you: make casual reference to the case of Brice Sandhagen v. Cox & Cox Construction, Inc. (2004, en banc).  In that en banc case, the WCAB specifically cited Strawn with favor, relying on it for the proposition that “medical reports not timely obtained in accordance with statutory requirements are generally inadmissible in workers’ compensation proceedings.”

But, Labor Code section 4061 does not have a time limit for making an objection, and Strawn had held that it needed to be made within a reasonable time.  So, if Sandhagen cited Strawn with favor, perhaps we can conclude that 6 months is an unreasonable time for making an objection?

Now, bear in mind, dear readers, that if you bring this case up you’re going to be faced with a barrage of abuse from the applicant’s attorney: Sandhagen was taken up on appeal, and the California Supreme Court granted review and issued an opinion.  So, in effect, Sandhagen is not binding law.  In fact, the applicant’s attorney might even claim that you should be sanctioned for citing a de-published opinion, as per 8.1105(e) of the California Rules of Court, and Section 8.1115(a) of the same.

Well, here’s what your humble blogger would do: First off, Section 8.1115(a) specifically prohibits citing opinions of the Court of Appeal and superior court appellate divisions – the Supreme Court has not prohibited anyone from citing a Workers’ Compensation Appeals Board decision even if it has been granted review.

Additionally, Labor Code section 5703(g) specifically allows us to cite and rely upon the “prior decisions of the appeals board upon similar issues.”

When you put the specific language of 8.115(a) together with the general provision of section 5703(g), it looks like the Sandhagen citation of Strawn with approval is left undisturbed and cite-able.

So, dear readers, have any of you tried this little argument?  Let me know in the comments (recently re-activated) or drop me a line at gregory@grinberglawoffice.com.

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