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!

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?

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.