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4061(i) – Object to the DOR or Waive it

Hello, dear readers!

Your humble blogger greets you with the blessings of a happy Friday, and has a blog post for you that will end all blog posts (not really, but just go with it).

Ok, so a while back your humble blogger did a post on a then-recent addition to Labor Code section 4061, specifically, subsection (i)’s prohibition on filing a Declaration of Readiness to Proceed absent both a PR-4 and a QME report.

The language of 4061(i) holds that “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].”

What’s the remedy for a violation of 4061(i)?  Does the aggrieved party waive its objection to the DOR by not making it timely?

Well, recently, the WCAB ruled in the case of Hernandez v. Costco Wholesale.  AA filed a DOR to an MSC after there was no response from his settlement demand for a whole two weeks.  (One might question if waiting only two weeks for a response to a settlement demand, one which presumably requires review, consultation with a client, and obtaining settlement authority, is truly a “good faith” effort to resolve a dispute as required before filing any DOR).

Defendant did not object to the DOR itself, but did object to the primary treating physician’s Permanent and Stationary report and appeared at the MSC and objected to a close of discovery.

The WCJ overruled defendant’s objections and allowed discovery to close and the case to proceed to trial.  On appeal, the WCAB reversed, but only because a subsequent treating report placed applicant on temporary disability once again, prompting the WCAB to reason that one cannot be both permanently and temporarily disabled at one time.

What do you think, dear readers?  Is 4061(i) supposed to just give parties yet another basis for an objection to a DOR?

Here’s your humble blogger’s take: a party should not be put in a position to object to what should be considered an invalid DOR.   Although it’s the safer practice to object to a DOR if there’s a valid reason to do so (this being one of them) ruling that a party waives its objection to the DOR rewards bad behavior.

Just take this situation one step further – what if the defendant filed a DOR to an MSC in response to an application for adjudication?  If AA had failed to object to the DOR for whatever reason, could the defendant demand to go to trial on the current, non-existent record?  Could the defendant claim that discovery is closed and there’s nothing to support a finding of permanent disability?  Of course not!

In the same vein, failure to make a good-faith effort to resolve the dispute, and properly documenting those efforts in the DOR, violates California Code of Regulations section 10414(d).  But, from your humble blogger’s experience, absent a timely objection to the DOR, many judges will consider the objection waived.

Practically speaking – if one were a WCJ, wouldn’t you want the parties to resolve their disputes prior to clogging up your docket?

In any case, for the time being, dear readers, we should continue to make timely objections to DORs even if the DORs are filed in violation of the Labor Code and Regulations.

Have a good weekend!

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