WCDefenseCA

Ok dear readers, we made it to another Friday.  Now, as a reward for keeping your composure this whole week, how about a blog post about a recent panel decision? 

So way back when in 2013 we got SB-863 which reformed workers’ compensation and, among a whole bunch of other stuff, gave us Labor Code section 4061(i), which, presumably, should prevent having cases set for extent of PD or work restrictions until there’s been a med-legal and a treating physician evaluation.

Unfortunately (or fortunately, depending on which side of the argument you are on) 4061(i) will typically get you an eye-roll at best, so I wouldn’t hold out hope for an OTOC or continuance in most cases.  So let’s look at the recent panel decision of Gomez v. Pagliro Construction, Inc.  Defendant objected to setting all issues for trial as it sought an additional panel in internal medicine.  It also raised an objection under 4061(i).  When the WCJ denied the additional panel request and set all issues for trial, the WCAB got involved to address defendant’s petition for removal.

So why get an additional panel in internal medicine?  Applicant reported chest pains following his 10-foot fall and the orthopedic QME advised that such complaints, and the related issue of causation, was outside of the good doctor’s expertise.  He suggested referring the issue to a cardiovascular specialist.

The WCAB agreed that an additional panel was warranted, as solely having a PTP comment on the issue without the opportunity for a med-legal  would prevent defendant “from conducting necessary medical-legal discovery to determine compensability for the alleged injury to the chest and circulatory system.”   The panel decision went on “neither party is obligated to accept the findings of the treating physician regarding causation.  The Labor Code expressly provides a process for either party to object to a medical determination by a treating physician and request a medical-legal evaluation from a panel QME to address the dispute [citations].” 

So what about the 4061(i) objection?  Does the WCAB give us some guidance on how that applies?  Nope!  Because defendant is entitled to an additional panel, the 4061(i) objection is rendered moot.

4061(i) is supposed to afford parties an opportunity to have both a med-legal and a treating physician comment on whole person impairment and work restrictions before the matter is submitted.  We know from the case of Hernandez v. Costco Wholesale that if 4061(i) is not raised in an objection to a DOR, it may very well be waived.   From Bustos v. WCAB we know that merely seeing a PTP and a med-legal is not enough – each of them must address WPI/PD.

For whatever reason, this section has not been getting a lot of attention from the panels and thus we are not left with very much in terms of guidance.  Thus, dear readers, the title of today’s blog post.

What has your experience been, dear readers?  Your humble blogger is eager to read all about it.  Have a great weekend!

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!

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!

So, there you are, smiling at the Heavens as they have given you the perfect Primary Treating Physician report.  It is exactly what you were hoping for in a situation like this – the PD rating is conservative, the work restrictions are light enough to be accommodated, and there is even a great discussion of why Almaraz/Guzman does not apply.  In fact, the injured worker was so persuaded by this super-star PTP that he didn’t even bother requesting a panel.

Then, of course, his cousin got hurt at work, and faced a similar situation, but his cousin’s lawyer requested a panel, and the QME opinion, though shoddy and poorly supported, found a lot of PD and heavy work restrictions for his cousin.  Your injured worker reasoned that he better lawyer up and get a panel, because, as his cousin put it, he’s “leaving money on the table.”  After all, who wants to work for a paycheck?

My dear readers will recall a post on this subject back from the sunny July of 2012 – we were all so young back then!  The two cases were both panel opinions – Benson v. City of San Diego and Strawn v. Golden Eagle Insurance Co.  In Benson, the split panel found that there was no time limit for the injured worker to request a panel of QMEs following an adverse PTP report with respect to work restrictions or permanent disability.  Strawn, on the other hand, held that a defendant had waited too long (six months) to object and get a defense QME report (this case is back from the year 2000).

Well, you’ve got these two panel opinions, neither one of them binding, wouldn’t it be nice to take the wind out of Benson’s sails and put some teeth into Strawn’s jaws?  Your humble blogger has a humble proposal for you: make casual reference to the case of Brice Sandhagen v. Cox & Cox Construction, Inc. (2004, en banc).  In that en banc case, the WCAB specifically cited Strawn with favor, relying on it for the proposition that “medical reports not timely obtained in accordance with statutory requirements are generally inadmissible in workers’ compensation proceedings.”

But, Labor Code section 4061 does not have a time limit for making an objection, and Strawn had held that it needed to be made within a reasonable time.  So, if Sandhagen cited Strawn with favor, perhaps we can conclude that 6 months is an unreasonable time for making an objection?

Now, bear in mind, dear readers, that if you bring this case up you’re going to be faced with a barrage of abuse from the applicant’s attorney: Sandhagen was taken up on appeal, and the California Supreme Court granted review and issued an opinion.  So, in effect, Sandhagen is not binding law.  In fact, the applicant’s attorney might even claim that you should be sanctioned for citing a de-published opinion, as per 8.1105(e) of the California Rules of Court, and Section 8.1115(a) of the same.

Well, here’s what your humble blogger would do: First off, Section 8.1115(a) specifically prohibits citing opinions of the Court of Appeal and superior court appellate divisions – the Supreme Court has not prohibited anyone from citing a Workers’ Compensation Appeals Board decision even if it has been granted review.

Additionally, Labor Code section 5703(g) specifically allows us to cite and rely upon the “prior decisions of the appeals board upon similar issues.”

When you put the specific language of 8.115(a) together with the general provision of section 5703(g), it looks like the Sandhagen citation of Strawn with approval is left undisturbed and cite-able.

So, dear readers, have any of you tried this little argument?  Let me know in the comments (recently re-activated) or drop me a line at gregory@grinberglawoffice.com.

Happy Monday, dear readers!

Your humble blogger is busy as always, helping benefits find their true identity: denied.

But, it is understandable that many of you on the other side of the computer screen aren’t today.  After all, Labor Day comes upon is just once a year, and this celebration of the contributions of the Labor Movement to the United States is, like so many other holidays, filled with sales and shopping (which, of course, means that retail employees don’t get the day off).

In any case, if you’re not taking the day off to shop or meditate on the results of the Labor Movement, then there’s a good chance you might be working today, so I thought I’d offer some friendly reminders.

Labor Day is a Holiday both under the California Rules of Court and as a State Holiday (see California Government Code section 6700).  Accordingly, as per California Rules of Court section 1.10(b), if the last day to perform any task was today, then the period is extended to the next day that isn’t a holiday, or Tuesday, September 4, 2018.

If you were planning on requesting a panel online as per Labor Code section 4062.2, the first day to request a panel is “[n]o earlier than the first working day that is at least 10 days after the date of mailing of a [4060/4061/4062 triggering document]” and that first working day should not be Monday, September 3, but rather Tuesday September 4, 2018.  Therefore, you may consider adjusting your plans to request a panel accordingly (and don’t forget the 5 days for mailing).

In any case your humble blogger hopes you do find some time to escape the sweet agony that is workers’ compensation, and if not for a full day then at least for some part of it.

Happy Labor Day!

Happy Monday, dear readers!

A while back, your humble blogger asked questions (as I often do) about Labor Code section 4061(i): how does this work?

4061(i) provides, after all, 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 treating physician and by either an [AME or QME].”

So… WHAT DOES IT MEAN?!?

One panel decision held that failure to object to the DOR citing 4061(i) waives the objection, but now another, Bustos v. WCAB/Randstad Placement Pros, a writ denied case, holds that an evaluation is enough – the fact that the treating physician has declined to address PD (or find applicant P&S) is not good grounds to hold off trial or close discovery.

In Bustos, applicant was examined by her PTPs, but they never addressed PD. Meanwhile, her PQME had found her permanent and stationary and expressed an opinion as to her PD level.  Applicant sought reconsideration arguing that defendant’s DOR was defective because it had not complied with 4061(i).  However, in affirming the WCJ, the WCAB concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary and the PQME who did.  The WCJ found the PQME more persuasive and thus the matter properly proceeded to trial.

As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial.  It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).

However, what if the pieces on the game-board were flipped?  If applicant’s PTP had found her permanent and stationary, but the PQME had not?  Could one party force a trial at that point?  I think so.

Now here’s another question – let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating.  Would that report provide good cause to reopen for new and further disability?

Happy Monday, dear readers!

The weekend has been kind to us all, and we are eager to get back into it: denying claims, delaying benefits, and, of course, humbly blogging.

Today’s post is on a topic oft-visited by this humblest of blogs: the total medical discharge.

As my beloved readers will recall, this issue has come up before: an injured worker receives a total medical discharge from an MPN physician, and then wants to use the “second opinion” process to contest the discharge.  But, as the WCAB has repeatedly held, a total medical discharge is contestable ONLY through the panel process of Labor Codes 4062.1 and 4062.2 and NOT through the second opinion process.

Why would an applicant prefer one to the other?  Well, back in the day, California Code of Regulations section 31.1 held that when the Medical director receives two or more panel selection forms on the same day, the party requesting the specialty of the treating physician wins, unless the party requesting a specialty other than the treating physician’s writes a persuasive argument for why a different specialty is necessary.  The inference often argued by various parties was that the PTP’s specialty should always control.

Well, that’s gone now – there is no more presumption regarding the treating physician’s specialty.  The current 31.1 directs all disputes to workers’ compensation Judges, and disputes regarding panel specialty are to be handled under section 31.5(a)(10), which requires the parties to write to the Medical Director to determine the appropriate panel specialty, without much guidance as to how this determination is to be made.  (Unless your humble blogger is misinformed, the seat for the medical director is currently vacant, so good luck with that.)

The tactic would go that you’d get a second opinion from a less conservative physician in the MPN, and then immediately use that physician’s specialty as the basis for a panel request, or to allow the applicant to change treating physicians to a more liberal specialty.

But the treating physician’s specialty no longer controls panel disputes, and the gutting of the regulation seems to suggest the legislative or administrative intent to divorce treating physician specialty from panel specialty, perhaps shifting focus to the nature of the injury and the nature of the dispute.

In any case, the recent panel decision touching on this topic is that of Fernandez v. KMART, in which a WCJ found that the primary treating physician’s total discharge report DID NOT satisfy the requirements of 9785(b)(3) because, while the PTP had released applicant with no limitations, restrictions, and provided no future medical care, he did provide that some symptoms “could be further evaluated with MRI as clinically warranted” and that she should engage in home exercise with a stationary bike, poor therapy, ice, use of knee brace and foot orthosis, and ibuprofen…”, and also failed to address one of the admitted body parts at all.

In other words, applicant doesn’t need any further medical care… but she does need further medical care.  Is that clear enough?

Applicant sought a second opinion in the MPN, although your humble blogger can easily be persuaded this was as much a tactical decision as just needing a physician to make a clear and internally consistent recommendation for further medical care.

After a hearing, the WCJ ruled that the treating physician’s report did not constitute a total discharge, and that by denying a second opinion treating physician, the defendant had denied care and applicant could now treat outside of the MPN.

However, on reconsideration, a split panel held that although the treating physician’s report was internally inconsistent, and would warrant a change in treating physicians, applicant had requested a second opinion rather than a change in PTP.  Because of the internally inconsistent report, the defendant should have authorized a second opinion physician.  However, the failure to authorize a second opinion physician did not constitute a denial of medical treatment, and thus did not justify applicant treating outside of defendant’s MPN.

One commissioner dissented, reasoning that relying on such an internally inconsistent report, even for the purposes of denying a second opinion within the MPN, constituted a total denial of care that should have allowed applicant to treat outside of the MPN.

Of interest here is that two of the three commissioners seemed to hold that a second opinion could be used to contest a total discharge… something that seems at odds with the prior holdings mentioned in the Acosta panel decision, which cited section 9785(b)(3) to say that “[i]f the employee disputes a medical determination made by the [PTP], including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth in Labor Code section 4060, 4061, 4062, 4600.5, 4616.3.”

By contrast, section 9767.7, regarding second and third opinions, limits the second opinion process to “diagnosis” or “treatment” by the PTP, which your humble blogger would submit excludes disputes related to discharge or the lack of need for ANY future medical care.

But this case should remind us that we need to carefully scrutinize the reports of treating physicians – a conclusory report is insufficient for retaining medical control.  It may be necessary to follow up with the treating physician to request a supplemental report that properly addresses any apparent internal consistencies.

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.

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.

Hello, dear readers!   So, show of hands: who is blowing off Monday and taking a four-day weekend through the end of Veteran’s day?  Ok, now, show of hands: who actually raised their hands in response to a blog post that can’t see them or acknowledge the hand-raising?

For those, like your overworked and underfed humble blogger, who are powering through Monday and, in all likelihood, Tuesday, I have the following story to relate to you.

A dear and beloved friend of mine obtained one of those rare gems in workers’ compensation – one of those diamonds that are rarely found and always appreciated: the full discharge.  The injured worker can avoid being maimed by surgery or having his life destroyed by doctor-provided narcotics, and can  return to full duty.  Meanwhile, the employer can go back to the work at hand (the business of business is business, after all).

Well, what if the injured worker, or his attorney, isn’t too satisfied with a total discharge?  After all, how much does an applicant’s attorney get from an attorney fee of 15% off of a 0% PD and no need for future medical care?  (Hint: even 100% of 0 is still 0).

So, what’s to be done in this case?  What devious treachery can the employer and/or its insurer expect from the less reputable applicants’ attorneys looking to turn a healthy worker into an unhealthy one?

California Code of Regulations section 9785(b)(3) provides that [i]f the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code section 4060, 4061, 4062, 4600.5, 4616.3, or 4616.4.”

Now, what do you think, dear readers, would the applicant’s attorney prefer to have his client on temporary total disability and receiving some sort of “treatment” while awaiting a panel, or would the attorney rather his client go back to work and put this whole injury behind him, possibly decided to abandon any claim?

If you’ve got an MPN set up, the applicant’s attorney is going to turn to Labor Code section 4616.3, and demand an MPN second opinion and possibly a third opinion, until some doctor says that further treatment actually is necessary.  The specific language is in subsection (c): “[i]f an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network.”

Furthermore, the applicant’s attorney will tell you, Labor Code section 4061 specifically excludes “the employees dispute of the medical provider network treating physician’s diagnosis or treatment recommendations under Sections 4616.3 and 4616.4.”

So, then, dear reader, are you stuck?  Is there nothing you can say to respond to these demand for a second, or possibly third, opinion as to whether further treatment is necessary?  Maybe there is.

Websters defines “diagnosis” as “the process of determining by examination the nature and circumstances of a diseased condition and the decision reached from such an examination.”

Websters also defines “treatment” as “to deal with (a disease, patient, etc.) in order to relieve or cure.”

Do either of those definitions fit with “discharge from care”?   As such, does 4616.3 really apply, given that it provides a second and third opinion as to “the diagnosis or the treatment prescribed.”

In the panel case of Acosta v. Balance Staffing Services, where the same issue arose and the WCAB, concurring with the WCJ, found that a discharge from care without need for further medical care was subject to the panel process, and not the MPN second-opinion process.

Now, here’s another tidbit – you probably like the specialty of the physician that gave you a discharge.  If that’s the case, and if you’re timely with your panel request, the treating physician can’t be changed under regulation 9785(b)(2), so odds are your panel will be in the same specialty as the one that found your injured worker dischargeable.  All good stuff, no?

What do you think, dear readers, is a discharge from care a diagnosis or treatment as contemplated by Labor Code section 4616.3?  Let your wisdom grace the comments below, or send an e-mail to your humble blogger.