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WCAB Moving Closer to Electronic Panel Requests; Proposed Regs posted

Hello dear readers!

Your humble blogger humbly returns to your inbox, and brings you news of what he anticipates will be more confusion and litigation at the Board.

Now, ask any WCJ what his or her favorite litigation topic is, what he or she feels is the very best use of judicial resources, what, ultimately, is the most fundamental issue touching on justice, due process, and the reason that each of them became a WCJ, let alone an attorney in the first place, and they’ll all tell you: panel disputes!

Now, in case the sarcasm didn’t come across in the preceding paragraph, panel disputes are not a favorite topic at the Board, and the frequency with which the subject is adjudicated far outpaces its welcome as a subject.  Never the less, it is of vital importance: the specialty, which often seems an arbitrary determination, often determines the most vital issues: should the PTP’s medical discharge stand, or does the injured worker need more medical treatment? (entitling him or her to a change in PTPs); is there permanent disability and how much? Should any of the permanent impairment be apportioned to non-industrial or other-industrial causes?

Submitted for the review of the community, we have proposed regulations.  Among the proposed changes for unrepresented cases, parties submitting panel requests would have to provide the notice of denial or a letter stating the need for an examination to determine compensability; and, if the requesting party is the claims administrator (and not the injured worker), the request shall include a copy of the written objection indicating the identity of the PTP, the date of the PTP’s report that is the subject of the objection, and a description of the dispute to be resolved.

From the looks of it, unrepresented injured workers could just submit a panel request without any additional information.

Then, folks, it gets interesting – represented cases.

Starting October 1, 2015, any request for an initial panel, for all cases with dates of injury after 1/1/05, “shall be submitted electronically utilizing the [DWC’s] internet site at www.dwc.ca.gov.”

Among the information to be submitted online, the requesting party shall provide all the information on the current form (presumably we’ll have an online form to fill out) and must scan and upload supporting documentation: exam requests or denial letters under 4060; or written objections providing the name of the PTP, date of the report, and subject of the objection.

It appears that a panel will be generated automatically, which the requesting party must then serve on the other side.  “[a]fter issuance of a panel, any subsequent requests on the same claim whether made on the same day or not, is a duplicate request.”  As expected, these changes nullify section 31.1 (panel selection disputes), changing the language to reflect that all disputes are to be resolved by the WCJ.

If these regulations are enacted as proposed, what does that mean for us.

First off, the defense attorneys need to get up to speed on the tech.  Your humble blogger has been an e-filer and has had an (almost) paperless office from the get-go, and highly recommends it as an approach.  This also means that any advantage previously enjoyed by the folks using mailboxes near Oakland will vanish – panel requests from Monterey will no longer have to lose to panel requests submitted from closer to the Medical Unit.

Now, what your humble blogger would suggest, since we’re in the process of bringing panel disputes to the information technology era, is to allow us repeat players to submit our contact information to the Medical Unit directly – if Party A submits a panel request and gets an automatic panel generated, why not immediately e-mail that panel to the other party rather than rely on service by the other side?  Mail doesn’t always make it, and it’s slower than e-mail when it does.

Another feature your humble blogger would like to see the Medical Unit explore is making panels accessible by the repeat players, such as claims administrators and attorneys: a search feature by name and date of birth (and date of injury) should reflect the panels previously issued in that case.

The comment period is open until June 20, 2015, folks – what do you think of the new regs?

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