Your humble blogger had the displeasing experience of watching unwelcomed neighbors move in over the weekend.  Just when I was starting to get the feel of the neighborhood, and the rhythm and routine of my fellow renters and sporadic home-owners was working itself out (the noise was at appropriate times; the job departure and arrivals had stopped interfering with each other) these new people moved in!

Now, I have to put up with them taking my prized dream parking spot (that curb near my door), listen to their dog bark day and night, and wait for them to pull out of the driveway so I can go to work and help deny benefits every morning.

Now I can sympathize with the other provisions of the Labor Code – that’s how they must have felt when Labor Code section 4061(i) moved into the area.

You’re not familiar with this one?  It’s one of the more infuriating additions to the rules: Labor Code 4061(i) purports to require a party to obtain a PTP AND an AME or Panel QME report prior to filing a DOR on the issues of permanent disability or work restrictions.

But what if you’re content with the PTP report and ready to go to trial without bothering with a QME report?  What if both parties are content to go to trial based only on the PTP report (not likely, I know).

Well, this blog wouldn’t be of too much use if I wasn’t prepared to offer you some crazy, crackpot, dice-rolling maneuvers on moving files along in the face of an inactive applicant and an inactive applicant’s counsel.

First off, let’s look at the language: “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a [PTP] and [an AME or QME].”

So, you have your P&S report from your PTP, and you offer to stip or C&R based on that report.  No response.  So you go ahead and file a DOR.  When you show up to the Board and the applicant starts citing 4061(i) at you, what’s the response?  There is no dispute!  You’re agreeing to go off the PTP report and applicant is silent (qui tacet consentire videtur).

Now, if your angry applicant is there pounding his fist and (loudly) professing NOT to consent, then let’s check the file – was there a timely objection to your DOR?  Was the objection made under penalty of perjury?  (See California Code of Regulations section 10251).  If the objection was untimely, not under penalty of perjury, or had any other defect, then you should argue that it’s time to proceed to trial.

Finally, don’t forget the laches argument – Vigilantibus non dormientibus aequitas subvenit – Equity aids the vigilant, not the sleeping ones.  When applicant sits on a PTP report for six months without an objection, without a panel request, without an offer of an AME, there’s hardly a reason to keep this file open, and if the WCAB is even slightly concerned about judicial economy, it should discourage the need for a hearing prior to moving cases towards resolution.

But how have the panels been interpreting this most unwelcomed addition to the Labor Code?  The pickings are slim.

Your humble blogger found two panel cases in which the WCAB held that no trial should be set where there had not been a QME or AME report, which is not a particularly encouraging result for diligent defendants trying to resolve cases without wasting money on QME or AME reports and evaluations.

Now, before you put these crackpot ideas into play, don’t forget that your humble blogger’s liability is strictly limited to a refund of your subscription free.  But if you do try to argue your way around 4061(i), please, please, please let me know the results.

As for the new neighbors, here’s hoping they learn to swim with the current, instead of trying to mess up the stream.

Have a good week!