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Proposed Regs: E-Filing Panel Requests; More Litigation Faster!

Want to request a panel? There’s an app for that!

The Department of Workers’ Compensation has posted proposed regulations to get the ball rolling on replacing the live-person Medical Unit with an automated system that would take online submissions.

Your humble blogger is all in favor of technology and progress, but let’s identify the problem before we come up with more technologically advanced ways of ignoring it.

The problem with the Medical Unit now is that it can take a month or two to get a panel, and the panel usually results in one or both parties being unhappy.  So, the parties take it to the Board for resolution, and each WCJ gets to smile and think how he or she became a WCJ because of a lifelong passion in resolving panel disputes.

First off, the regulation (see section 31.1(a)) incorporate that memo that has been sent out with every panel for the last few years: bring all disputes to the WCAB and not to the medical unit.  Furthermore, the regulations appear to break filing down into three categories, at least based on section 30(b)(4):

  1. Requests submitted on a Saturday, Sunday, or holiday; which will be deemed to have been made on the next business day;
  2. Requests made between 5:00 p.m. and 11:59 p.m. (Monday through Friday), which will be deemed to have been made on the next business day;
  3. Requests made between 12:00 a.m. and 7:59 a.m. will have been deemed to be made on the same business day.

So, let’s say you’ve made your objection to a PTP report, and, you’re getting ready to make a panel requests.  If you go online on day 15 after 5:00 p.m., you can submit your request and have it deemed filed at 8:00 a.m. on the 16th day, right?  Fantastic!

The effect here, however, is to eliminate the tactical advantage enjoyed by those law offices located close to the Medical Unit in Oakland, and to favor the technologically savvy.  It also doesn’t seem to resolve the key issues involved: panel specialty disputes.  In fact, the thin amount of guidance offered by the regulations, that favoring the treating physician’s specialty if two panel requests are submitted on the same day, is all stripped away.

It’s easy enough to criticize someone else’s can of worms, but what would your humble blogger do?  Your humble blogger would restore the due process rights of the parties in workers’ compensation proceedings, and allow the parties to retain their own medical experts.  No more panels, no more litigation over how the 16th day should be calculated, or if the boilerplate objection satisfies the regulatory scheme.

Yes, the defense community would have to pay two QME fees; yes there would be two medical reports to read and possibly two depositions.  But, your humble blogger submits to you, his beloved readership, that we would be better off than with the insane mess we have now.  And, if we had a pre-2004 system, we wouldn’t need an online system.

Have a great weekend folks, and to my Jewish readers – may you have an easy fast, and may you and yours be written in the Book of Life this Yom Kippur!

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