WCDefenseCA

Greetings, dear readers!  Your humble blogger understands and appreciates that many of the kind workers’ compensation scholars out there, some of which may, in terms of e-mail subscriptions, be called “followers”, have today off work in observance of Martin Luther King day.  As always, your humble blogger urges his readers to not only take a holiday off to rest and catch up on chores, but also to reflect on the reason that so many businesses have their doors closed in observance.

Now, that being said, your humble blogger saw a writ denied case that would tolerate no delay in commentary.  So, without any intended disrespect to the legacy of Dr. King, your humble blogger now brings you the case of Montejo v. United States Fire Insurance.

Therein, applicant sustained an injury to his neck and shoulders as a cumulative trauma.  The defendant requested a report under Labor Code section 4064, which was discussed previously in this post.  Although sub rosa video, along with applicant’s deposition transcript and medical records were sent to this physician, the physician did not examine applicant. (Dear readers, your humble blogger has no experience with the physician named in this case, and so declines to name him.  After all, your humble blogger does not like to name names.)

The 4064 physician wrote a report in which he concluded that applicant was a malingerer and had masochistic tendencies, and that his level of disability did not appears to match his activities in the video.  Defendant sought to serve this report on the primary treating physician, the QME and the AME (your humble blogger presumes that there was an AME for some issues, but only a QME for others).

Applicant objected, arguing that the report would be prejudicial and sought an Order preventing service of the report to any of the relevant medical authorities.  After all, if defendant could get the primary treating physician to comment on the report, even to condemn it completely, then, presumably, the primary treating physician’s report would incorporate the 4064 report, and both could be sent to the QME and AME.

The issue came before the WCJ, who ruled that the report could not be provided to any physician because it was “inadequate.”  The WCJ noted that there had never been an examination by defendant’s 4064 physician of applicant, and that there was no foundation for the 4064 physician’s qualifications to comment on neither the results of surgery nor the claim of psychiatric injury, as the 4064 physician was an internist.  From the WCJ’s position, it appears that there were also several layers of hearsay relied-upon by the report.

The WCAB was not receptive to defendant’s petition for removal, adopting the WCJ’s  report and recommendation and denying removal.  The Court of Appeal, likewise, denied review.

I know, I know, dear readers, not the case of the century.  But, it struck me as interesting and particularly worthy of relating because of the flaws found by the WCJ should be a cautionary tale for us all.

The first thing to recognize is that 4064 is not really in play anymore.  SB-863 amended 4064 to drastically limit the admissibility of these reports.  However, if you aren’t too happy with the PTP or what the Medical Unit sends you, and an AME is not a viable option, you can still get a 4050 exam and report.  That being said, the flaws found in this case’s 4064 exam should be avoided in your 4050 exam to increase the odds of it being reviewed by a PTP, and eventually a QME:

1. There should be an actual, face-to-face examination;
2. There should be a listed and review and summary of all medical records and reports;
3. There should be some foundation laid for the physician’s qualifications, including, but not limited to, a curriculum vitae;
4. To the extent possible, all conclusions should be explained and supported in detail: it’s very easy to say that an opinion is based on the physician’s “training and experience,” but it would be far better to explain that “symptom X is typically not found in the presence of condition Y as explained in Medical Journal ABC…”
5. Finally, the report should not rely on “hearsay” too heavily – although what the defense attorney or the private investigator relates to the evaluation physician is likely true and accurate, the report will be more reliable if information is obtained from primary sources, such as medical records and the injured worker him or herself.

As always, dear readers, life offers no certainty except death and blog posts, so take the rambling postings of your humble blogger as worth as much as what you paid for it.  But, once you have engaged in meaningful reflection of today’s holiday, perhaps you can also reflect on this tiny corner of the workers’ compensation world.

How would you like to send your injured worker to a physician of your choice for a thorough examination?

Labor Code section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense.   However, are these reports of any use?

First off, let’s talk about the good.  Section 4050 allows you to get an injured worker before a physician you trust, and get a thorough evaluation going.  What’s more, it’s an opportunity for you to have your own expert witness prep your attorney for the cross examination of a QME or AME that might decide to get creative with his or her own report.  Although we defense attorneys possess “Juris Doctorate” degrees, we typically welcome all the help we can get with the medical mumbo-jumbo.

In fact, in the panel case of Lopez v. Target Corporation, from way back in 2012 (you remember 2012, don’t you? The year before SB-863 took effect in full…) held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.

Here’s another fun fact: if you suspect your injured worker of lying, a 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa.  And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, the local law enforcement folks should have no such reservations.

Additionally, section 4053 provides that “[s]o long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.”  Your humble blogger doesn’t need to tell you the benefits of a missed appointment.

And, on top of everything else, this is a guaranteed spot for your sub rosa guys to meet the injured worker and follow him or her around.  Wondering where he’s working? Wondering what she’s doing with her spare time?  Now you’ll know where and when the injured worker will be for your hounds to pick up the scent.

Now, let’s talk the bad.

California Code of Regulations section 35(e) purports to limit the reports that can be sent to a PQME, namely prohibiting “any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge.”

In Marciano v. Ameriflight, Inc., a 2013 panel case, the WCJ ordered that a 4050 report shall not be provided to a QME because section 35 is the authority on what documents can be sent to a PQME,  citing § 35(e).  The WCAB adopted and incorporated the WCJ’s report.

But, don’t get discouraged.  35(e) provides that the WCJ can still rule on admissibility, and if the report itself merits it, perhaps just such a ruling could be obtained (hope springs eternal).

What do you say, dear readers, have you had any luck with 4050 exams?

Welcome back dear readers!  Your humble blogger wrote on Monday that the DIR was extending emergency regulations regarding tele-medicine evaluations and reporting for med-legal exams into October.  Well, what better follow-up blog post than one interpreting and applying those regulations?

A few months ago, the WCAB issued a panel decision in the matter of Pettway v. Trillium Staffing Solutions, wherein defendant sought to compel an in-person examination rather than one over video and phone.  But first, a bit of background…

Emergency regulations were promulgated to allowed for safer examinations at a time of COVID19 and a rapidly evolving situation (and possibly virus) constantly changing the rules for safety.  Your humble blogger is old enough to remember when were told COVID19 can’t spread from person to person, then masks didn’t do anything, then masks helped but not all masks, then it would only be 15 days to stop the spread… and on it went as new information became available.

Well, among those relevant regulations were the various subsections of Reg. 46.2, which provided for having a QME or AME “interview the injured worker either by telephone or by any form of video conferencing” with in-person exams to follow once the stay-at-home orders are lifted. 

In some situations this works great – a psychiatric evaluation really doesn’t need to measure range of motion, so video exams should be fine.  In other cases, such as those that call for the measurement of grip loss, or to observe a potential malingerer as to his or her gait, video isn’t the best.

Well, in Pettway, applicant sustained orthopedic injuries and failed to attend an in-person exam with the PQME.  Defendant sought to compel his attendance at the next exam, but the Workers’ Compensation Judge declined to compel physical attendance until the lifting of the Shelter in Place Order.

Defendant appealed with some interesting arguments.  Initially, it argued that it was entitled to medical-legal evaluations pursuant to sections 4050 and 4053 of the Labor Code, and, secondly, because medical facilities are “essential businesses as contemplated by the Shelter-in-Place Order.

Well, your humble blogger opined previously that Governor Newsom’s orders were in conflict with the constitution when it came to presumptions of compensability, particularly because the California Legislature has plenary power over all things workers’ comp and the executive branch has no business meddling with the workings of our beloved swamp.

Presumably, to the extent that the WCAB is promulgating regulations in conflict with the Labor Code based on presumed authority granted by the executive branch’s executive orders, the same rule would apply: the Labor Code as to in-person evaluations should control.

But, as happens often enough in times of panic and mass hysteria, these arguments go by the wayside.  Your humble blogger is also old enough to remember when post 9/11 security and investigatory efforts rebuffed challenges based on due process, civil liberties, and privacy rights with the retort “the Constitution is not a suicide pact.”  So, too, in an effort to respond to the dangers of COVID19, no one wants to risk seeming to ignore the danger posed by the pandemic.

Your humble bloggers ramblings and soap-box preaching aside, what did the Pettway panel do with this case?  They kicked it down to the trial level again, with instructions to explore a way to make everybody happy: “Although an in-person evaluation with the QME may not be possible at this time due to state and local public health orders, we will return this matter to the trial level to permit the parties to address whether the medical-legal evaluation with the panel QME … may proceed in some fashion in accordance with the DWC’s emergency regulations.”

So, let’s look at the situation, dear readers: the QME seems willing to do an in-person examination and is not requiring a phone or video med-legal exam.  Defendant wants this and is willing to pay mileage and transportation costs (presumably).  The only hold-up is applicant.  Is there a basis in the emergency regulations for applicant to refuse to submit to an examination?

Well, for starters, section 46.2(a) provides “[d]uring the period that this emergency regulation is in effect a QME, AME, or other medical-legal evaluation may be performed as follows:” (emphasis added).  That sounds like permissive language, not mandatory.  Further, all the subsections to 46.2(a) appear to give the authority to set remote med-legal exams to the QME and AME, and NOT the injured worker.

Accordingly, unless the QME is refusing to do an in-person exam, compelling attendance of an in-person exam appears to be in accordance with the emergency regulations.

The practical application for this for defendants is particularly harsh.  If the injured worker is receiving temporary disability benefits, often enough, the QME might be the only way to cut off TD benefits.  So long as the applicant is steered to a physician who seems him or herself as a “patient advocate” rather than an objective evaluator of medical conditions, the TTD status can be expected for the long haul.

Please recall, dear readers, that at the time these regulations first became effective, May 14, 2020, there was no vaccine for COVID19.  Then first vaccine was authorized by the Trump Administration with an Emergency Use Authorization in December of 2020.  Although recently extended, these current emergency regulations do not account for the fact that perhaps the PQME and the injured worker are both vaccinated, which the CDC advises is now safe for in-person visits.

As we get closer to the emergency regulations being one year old, especially in light of all the changes in scientific conclusions and available remedies that were not available in May of 2020, what relevance the regulations will have and how the WCAB will apply them. 

Carry on, dear readers!

Happy Friday, dear readers!

Your humble blogger is very happy to report that in its recent decision, the Court of Appeal ruled that however great a fall Humpty Dumpty might sustain, all the king’s horses and all the king’s men are only responsible for putting back that part of him that was industrially injured.

Convoluted enough for you?  Well, prepare to have your mind blown – nowhere in the rhyme does it say that Humpty was an egg.  In fact, he was a workers’ compensation applicant in California’s claims system.

The case I speak of (or write of, depending on whether my pestering lawyer voice is already stuck in your head) is City of Jackson v. WCAB.   Therein, applicant, a police officer, alleged a cumulative trauma to his neck, shoulder, arm, and hand.  The PQME opined that 49% of his permanent disability as to the neck was caused by genetics and not by the cumulative trauma.

Although the WCJ sustained this apportionment, the WCAB reversed, finding instead that the report was not substantial evidence as to apportionment because apportionment to genetics was an impermissible immutable factor.  The Board further opined that such apportionment is an apportionment of the injury rather than the permanent disability.

The Court of Appeals disagreed.

After reviewing the facts and procedural history, the COA noted that the enactment of SB-899 allowed apportionment of permanent disability based on causation.  Citing Brodie v. WCAB, the Court of Appeal noted that “[s]ince the enactment of Senate Bill No. 899, apportionment of permanent disability is based on causation , and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury.”  The COA continued that the law specifically permits “apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.”

In citing the case of ACME Steel v. WCAB, the Court of Appeal also held that there is “no relevant distinction between apportionment for a preexisting disease that is congenital and degenerative, and apportionment for a preexisting degenerative disease caused by heredity or genetics.”

Accordingly, the PQME appropriately identified and estimated a non-industrial cause of applicant’s permanent disability.  The Court of Appeal ruled that this genetic predisposition was not an impermissible immutable factor.

We’ve seen something like this before, though it went largely unnoticed: in the matter of Reff v. WCAB, a 2011 writ denied case, the industrial pneumonia lit up applicant’s pre-existing but asymptomatic  common variable immune deficiency, resulting in significant disability and need for treatment.

Another interesting fact in this case was the element of causation – as this was claimed as a cumulative trauma, the Court of Appeal opined that the QME was not apportioning to causation of injury, as the QME was not asserting that the repetitive motion that caused the injury was in turn caused by genetics.  Instead the disability was caused by applicant’s genetics.

So, some take-aways from this case: some QMEs will decline to apportion to pre-existing or non-industrial conditions, reasoning that, if applicant was able to perform his job duties before, there was no visible disability.  But, this opinion appears to hold that apportionment to asymptomatic pre-existing conditions that are only triggered by the industrial injury is appropriate.

Furthermore, genetic conditions are apparently NOT an impermissible immutable factor.  The Court of Appeal expressly rejected this holding to opine that it is permissible for a QME to apportion permanent disability to such a condition.

For the more serious cases, this seems like a good opportunity to bring up the concept of 4050 exams.  If the stakes are high enough,  it might make sense to hire a 4050 doctor to conduct an exam, and offer both literature and guidance to the defense attorney on the extent of permanent disability that should be attributed to non-industrial causes, such as genetic conditions.

Score a point for the good guys!

Happy Monday, dear readers!

Your humble blogger brings you the unpublished Court of Appeal decision in the matter of Davis v. WCAB and the City of Modesto.

Remember, dear readers, unless you want to get yelled at, you don’t cite unpublished decisions in court!  See California Rules of Court 8.1115.

Anywho, in the Davis case, applicant alleged a cumulative trauma and specific injury as a result of his job duties.  Both claims were submitted to a QME who concluded that the condition in question was not industrially caused.

Applicant then hired his own doctor (NOT a QME) and forwarded that doctor’s reports to the QME for comment.  In ruling on the City of Modesto’s objection, the WCJ found that the reports themselves were not admissible, but the QME could review them and comment upon them.

At the heart of the issue, of course, is California Labor Code section 4605, which went into effect in its current form on January 1, 2013.  That section empowers an employee to provide a consulting physician at his or her own expense, and a QME is made obligated by the same section to review and address the issues raised by the reporting of this consulting physician.

The WCAB did not address this argument, by its own admission in the face of applicant’s petition for a Writ of Review.  So, in due course, the Court of Appeal consented to the WCAB’s own request to remand the matter so that the WCAB could address it.

Looking at this issue, of course, it’s hard to read Labor Code section 4605 in any way that does not result in a favorable outcome for Mr. Davis.  It appears that he did exactly what 4605 calls for: he retained a physician at his own expense, paid the physician to write some reports, and then sent those reports to the QME for comment.

That being said, perhaps this is a perfect example of when the Workers’ Compensation Laws of California are weighed heavily against employers and insurers.

Here, the applicant’s attorney can pony up some cash as a litigation expense, hire an expert, and require the QME to review and comment on these reports.  Hypothetically, once the report is commented upon, they might even be submitted for trial and a WCJ might find that the QME’s reports are not substantial evidence when read in comparison to the retained physician’s report (even though, at least in theory, this 4605 report should not be the sole basis for an award).

Now, flip this over – let’s say applicant beats defendant to the punch and gets a pill happy applicant’s QME who has sees a role model in Dr. Nick Riviera:

What remedy does the defendant have to get a reasonable physician to comment on the case?

Well, for one thing, a 4050 exam is NOT an option if the case is denied, and even if applicant submits to a 4050 exam on an accepted case, California Code of Regulations section 35 severely limits the reports that can be sent to the QME, and a WCJ can keep those 4050 reports out!

So, what’s to be done in the Davis case?  Well, for one thing, sometimes the applicant attorneys just can’t help themselves, and they file a lien or demand reimbursement for the payments made to the 4605 doctor.  If that’s the case, then the report isn’t really at the employee’s “own expense.”  In theory at least, such a claim for reimbursement should negate the admissibility of the 4605 report.

Now, one thing a defendant could do in such a situation is to delay.  And the way to do that is to cite California Code of Regulations section 35(e), using the same authority that delays the provision of a 4050 report to the QME.

As section 35(e) provides that “[i]n no event shall any party forward to the evaluator: … (2) any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician, or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge…”

But if the case is denied, the consulting report is likely only addressing causation, and not PD, work restrictions, or apportionment.  Furthermore, wouldn’t an “attending” physician constitute “a treating physician”?

If the stakes are high enough, it may be prudent for the defense to hire a physician to review the relevant reports and help draft a supplemental to go to the QME.

Paging Dr. Nick…

Correction: This is a PANEL decision denying removal, and NOT a writ denied case – the Humble Blogger.

Hello, dear readers!

Your humble blogger brings you greetings this Wednesday, with a report on the matter of the recent case of Roberts v. City of Los Angeles, in which the WCJ found, without reversal by the WCAB, that defendant’s efforts to keep certain records away from the PQME should be crushed!

Applicant claimed a cumulative trauma and the parties, unable to agree on a medical evaluator, obtained a panel.  Defendant argued that it should be able to send the PQME certain non-medical information, namely the report of an independent epidemiologist who was not made part of the case by the treating physician.

The WCJ denied defendant’s request, reasoning that Rule 35(e) specifically prohibits sending a PQME “any evaluation or consulting report written by any physician other than a treating physician, the [PTP] or secondary physician, or an evaluation thought he medical legal process… unless that physician’s report was first ruled admissible by a [WCJ].”

The WCJ opined that the report by defendant’s retained epidemiologist appears to be an expert report with an analysis on industrial causation and a defense-friendly conclusion.

The WCAB denied defendant’s petition for removal.

If this sounds familiar, my beloved readers may recall a blog post or two on 4050 exams, which the WCAB seems keen on keeping away from QMEs.  Although the 4050 exams seem to be acceptable for the purposes of preparing defense attorneys for cross examination of QMEs, 4050 reports, or independently retained expert reports, are not to be put before the QME for consideration.

But, here’s what your humble blogger is missing… aren’t we all familiar enough with the show Jeopardy to phrase our answers in the form of a question?  If you already have the reasoning and the conclusions from your own expert, why can’t those theories be phrased as questions in a cover letter to a QME?   Why can’t they be used to guide cross-examination or a supplemental report?

Of course, your humble blogger is disappointed in any defendant’s call for aid to be unanswered by the WCAB commissioners, but there are surely greater tragedies in the world.

Happy Wednesday, dear readers!

Happy Monday, dear readers!

Your humble blogger always wants to be honest with his beloved readers, and to that point, it’s confession time.

Yesterday, I spent about 25 minutes with my kids searching for their Halloween candy which I had eaten the night before.  They’re not at an age to read the blog, so I’m certain my secret is safe with you.

As an act of contrition, I offer you this blog post on the Court of Appeal decision of Batten v. WCAB.  As you may recall, Batten has graced the electronic pages of this blog previously, where applicant obtained a report from a psyche doctor concluding that her psyche condition was industrial, and the WCJ rejected the actual QME’s opinions as to AOE/COE to adopt the opinions of the “hired gun” instead.

The WCAB reversed, noting that 4064 reports are relics from before SB-899, and that the only admissible medical expert reports are now through the panel process of 4062.1 or 4062.2.

Applicant argued that there was a conflict in the language of the law – 4064 allows admission of all comprehensive medical evaluations except as provided in section 4060-4062.2, but 4061 specifically limits compensability reports to the panel process (as to privately retained experts – treating physician reports are still ok).

The Court of Appeal essentially concluded that you can go and get your own report if it makes you feel better, but the report does not become part of the record.

So, dear readers, what’s the point?

Just like with a 4050 exam, the injured worker can retain a personal expert to prepare the applicant’s attorney for a cross examination, or just make the arguments directly to the PQME for consideration.  The problem for most injured workers is that they  don’t approach the case with a war-chest of litigation funds, so this tactic might be of a somewhat limited benefit.

There are a lot of meritorious arguments to returning to the pre-SB-899 format: dueling experts and each side retaining its own hired gun.  Locking both parties in the tiny QME cage and having them duke it out produces more litigation than one can shake a proverbial stick at.  On the other hand, while we are stuck with using the panel system, Batten gives a pretty good result: an applicant can have as many examinations as he or she wants, but the barrier to entry into the record remains fairly high.

Here’s a question for you, dear readers: should the applicant be able to object to closing discovery just to obtain his or her own expert evaluation and report?  Picture this timeline: panel QME sees applicant, and issues a report 30 days later finding the injury non-industrial.  After a 30-day turn around (we’re up to 2 months since the initial evaluation) the applicant’s attorney selects and retains his or her own expert under 4064, and 60 days later we have a new report from the 4064 doc finding the injury industrial.  What if the defendant filed a DOR in the meantime and wants the MSC to close out any more reports (including the QME’s review and response to the 4064 doctor’s report)?

Things to ponder on a Monday.

Happy Monday, dear readers!

I bring to you the case of Millette v. 81 Grand holdings, Inc., a recent writ-denied case having to do with deferral of utilization review.  Applicant sustained an injury for which no denial was issued within 90 days of it being reported, and defendant provided neck surgery.  Following the surgery, various treating physicians requested several forms of treatment, all of which were deferred by the defense because “causation is in dispute.”

Applicant filed for an expedited hearing, and the WCJ awarded treatment, reasoning that California Code of Regulations section 9792.9.1(b) requires a “clear, concise, and appropriate explanation of the reason for the claims administrator’s dispute of liability for either the injury, claimed body part or parts, or the recommended treatment.”  The WCJ found that “causation is in dispute” did not satisfy the requirements of the regulation.

On reconsideration, defendant argued that this order would bypass utilization review, but the WCJ, in his report and recommendation, relied on subsection (D) of 9792.9.1, which provides that the injured employee may use “the dispute resolution process of the [WCAB].”

The WCAB denied reconsideration and the Court of Appeal denied review.

Of interest in this case is that defendant was put in a position where the injury was presumably compensable, as per Labor Code 5402(b) (“[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”)  So, what is the defense basis for disputing causation?

Well, the injury itself was a trip-and-fall, resulting in injury to the neck and face.  But the RFAs were for treatment home care, a Foley catheter, a power wheel chair, and a urological consult.  If defendant is aware of pre-existing medical conditions that might create the need for this additional treatment, conceivably there would be valid grounds for whether the treatment is necessary specifically for the industrial injury.

But, it looks like a more concise explanation would be necessary to defer UR.  Perhaps further discovery would also be necessary prior to litigating the issue – defendants have the resources of a 4050 exam which can be used to cross-examine the treating physicians and even to guide and inform the cross-examination of a PQME on the issue of causation (your humble blogger will go toe-to-toe with anyone on Star Wars trivia, but might need some professional guidance when it comes to whether a neck surgery might cause urinary problems).

Defendants can subpoena prior treatment reports to show the need for these treatments existed prior to the industrial injury – perhaps an applicant’s private insurance records will include a denied request for such treatment predating the DOI?

In any case, dear readers, perhaps UR is a safe route to do as well?  After all, while section 9792.9.1 allows the disputes to be resolved through the WCAB, Dubon II allows no such disturbance from a timely and properly communicated UR report.  It might be worth the vendor fee and IMR bill.

Welcome back, dear readers!  The fireworks are done, the fires are put out, and our Glorious Republic is still free from domination of Her Majesty’s government – having prevailed both in the war of 1812 and the British Invasion of the 1960s, not to mention watching the hotdog assert global domination over the banger.

So, perhaps we can turn now our attention to the business of workers’ compensation?  I bring to your attention the split panel decision of Dileva v. Northrop Grumman Systems Corp, recently denied review by the Court of Appeal.

The WCJ awarded applicant 96% permanent disability, based on three orthopedic injuries and the resulting psychiatric injury.  The AME for the orthopedic injuries apportioned among the three injuries, but the psyche primary treating physician did not, reasoning that the causation for the impairment from the three orthopedic injuries was inextricably intertwined.   The WCJ then relied on the psyche PTP’s opinions regarding apportionment, and issued one joint award for all three injuries, both for psyche and orthopedic PD.

Defendant argued that the psyche PTP’s opinion failed to properly address apportionment.  Shouldn’t, after all, the psyche apportionment trace the orthopedic apportionment, having been caused by the orthopedic injuries?

The majority reasoned that the burden of proving apportionment is on the defense, and found “it significant that the defendant did not avail itself of the dispute resolution process provided by [LC 4061(b)].”  Of interest to your humble blogger, the majority even cites LC 4061(i): “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 declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

The WCAB majority noted that since it was defendant’s DOR that set the matter for trial, and it did not object to or seek a second opinion on the psyche PTP’s opinions on apportionment, defendant was, in your humble blogger’s words, stuck – after all “sometimes you gotta dance with the one that brung you.”

But, look, defendant’s position in this case makes sense – the parties are more bound by the opinions of an AME than a PTP, and the AME here has opined to the causation of permanent disability as to the orthopedic injuries.  If the psyche injury is caused by the orthopedic injuries, what’s good for the proverbial goose, is perfectly good for the proverbial gander.  At the very least, there should have been apportionment as to the orthopedic injuries.

Not so, said the majority: “the percentage to which an applicant’s injury is casually related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury.”

The dissent cited Labor Code section 4663(c), reasoning that the Labor Code requires a physician’s report to include an apportionment determination, and if the physician can’t include apportionment as part of the report, the physician must give the specific reasons why “the physician could not make a determination.”

Section 4663(c) requires the physician then to refer the case out to another physician that could make an apportionment determination.  As the psyche PTP found that he believes “it would be speculative to attempt to apportion the permanent psychiatric disability between the various injury dates” the proper course of action would have been for the psyche PTP to refer the matter out to another physician to render an apportionment opinion.

Needless to say, your humble blogger is not pleased with the result here.  Parties are regularly and strongly encouraged to use AMEs to expedite resolution of cases and to reduce the burden and backlog faced by QMEs and the medical unit.  Well, here, the parties relied on an orthopedic AME, only to have his opinions rejected in favor of a treating physician.

Furthermore, 4061 looks like it’s being reduced to a waiveable bases to object to a DOR – there was no AME or PQME in psyche, so why was this case allowed to proceed to trial?

The defense position, and what I gather from the panel opinion and dissent, the strategy, was not unreasonable – the medical record consisted of clashing opinions between a treating physician and an AME – the AME’s opinions, unless they’re fresh from the quacking-factory, should have prevailed at trial (not having read any of the actual reports, your humble blogger cannot comment on this last point in this case).  And, after all, you never know what another doctor is going to find – more impairment? More TTD? Perhaps a solid reason why there should be no apportionment at all?  It’s a risk, of course.

So what do you do if you don’t want to do get a panel or an AME but you’d like to knock the opinions of a PTP a bit more in your favor?  After all, with 96% PD on the line… that’s a lot of money.

What about a psyche 4050 exam, with a report by the 4050 psyche doctor to help you cross-examine the PTP at a depo?  Perhaps the PTP would even review and comment on the 4050 report and make it part of the medical record? Just a thought, dear readers.