Search Results

Keyword: ‘4061’

SB-863 Limits Scope of 4064 Reports, even Pre-1/1/13 Reports

March 10th, 2014 1 comment

Back in the old days, before SB-899, parties in workers’ compensation proceedings behaved much like parties in a civil case.  By that, I mean of course, that each party got to select its own expert witness (Defense QME and Applicant QME), and workers’ compensation trials were held in the Thunderdome wing of every Board venue (“Two docs enter, one doc leaves!”)

For those that weren’t with us back then, here is some rare footage of a workers’ compensation attorney laying the foundation for the introduction of two orthopedist QMEs with dueling testimony:

Well, post SB-899, that practice came to an end, and we were blessed with the seamless and streamlined process of panel QME selection.  However, Labor Code section 4064(d) still allowed parties to obtain additional evaluations at their own expense, and have those reports admitted as evidence.

SB-863, however, changed that – it amended section 4064(d) to exclude reports on issues already covered by section 4060 (compensability), 4061 (PD), 4062, 4062.1 (unrepresented catch-all), and 4062.2 (represented catch-all).

So what happens when a report from a “self-procured” QME was obtained after January 1, 2013, when Governor Brown put pen to paper and made the bill law?

Section 84 of SB-863 made all the rule changes, unless otherwise provided, effective on 1/1/13, even for pre-1/1/13 injuries.

That was the ruling, at least, in the panel case of Margaret Batten v. Long Beach Memorial Hospital.  Applicant was awarded a whole lot of PD based on a report obtained under old Labor Code section 4064(d).  But even though the injury is from 2006, and the report was obtained prior to 1/1/13, SB-863 prohibited its admission into evidence after 1/1/13.

So, if you’ve got a 4064(d) report and you’re heading into trial, check the expiration date, you might be able to get it knocked out.

Categories: Uncategorized Tags:

No More Boilerplate PTP Objections?

December 19th, 2012 No comments

The legislators have changed the beat of the QME dance yet again, and now our foot-work must match the tune.  It looks like the boilerplate – “I object; here is a pro-my-side QME I am proposing as an AME;  I’ll file a panel request for a [chiro/ortho] in 16 days from today” will no longer work.

The new emergency regulations to be submitted tomorrow to the Office of Administrative Law, would require an objection letter to do more than just complain – section 30, subsection (b)(1) would require any request for a QME panel to “attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician’s report that is the subject of the objection, and a description of the medical dispute.”

So, what does that mean?  Applicants will have to put in some leg work in getting a panel, and blanket objections will not do.  Furthermore, it looks like the Valdez case will be considerably less relevant – a new timeline is included in Labor Code section 4062.2… and it doesn’t require the proposal of Agreed Medical Evaluators, just the first possible day to submit a request for a panel:

  1. In cases of requests for medical evaluations under Labor Code section 4060, the first working day that is at least 10 days after the date of mailing of a request for an evaluation;
  2. In cases of 4061 or 4062 medical disputes, the panel request shall be made “[n]o earlier than … the first working day that is at least 10 days after the date of mailing of an objection”.

So, once the proposed regulations are approved, keep an eye out for applicants’ objection letters – if you’re beaten to the punch and the panel is issued in an inappropriate specialty, perhaps the panel request can be invalidated based on failure to adhere to the regulations.  At the very least, we should see litigation on this issue in the coming months.

 

Categories: Uncategorized Tags:

On Delayed Treatment Objections… How Long is Too Long?

July 11th, 2012 No comments

Lexis has a great blog post about Labor Code section 4061 and the timeline for a request for a panel.  Labor Code section 4061 subsection (b) provides an opportunity for the employee or the employer to object to a determination of a medical treatment with respect to the existence or extent of permanent impairment or limitations or the need for continuing care.  But, for whatever reason, there is no time limitation imposed upon the parties for when to object.

An applicant on the receiving end of an adverse utilization review report has 20 days, if represented, and 30 days, if unrepresented, to object.  (Labor Code section 4062)  But what about objecting to a treating physician’s determination with respect to whether an injury has been sustained at all, or the extent of the disability caused by the injury? (Labor Code sections 4060 and 4061)

The Lexis post brings to light the case of Kathryn Benson v. City of San Diego, in which a split panel ruled that applicant’s request for a panel under Labor Code section 4062.2, three years after being declared permanent and stationary with no impairment by her treating physician,  was timely and the PQME report was admissible.

Defendant argued that the request was untimely and that applicant should not be able to revisit a treating report that had so long rested undisturbed.  In reviewing the arguments, the workers’ compensation Judge relied on the case of Strawn v. Golden Eagle Insurance Co., a 2000 panel decision.  In that case, the panel held that a 4-month wait to obtain a Qualified Medical Evaluator was unreasonable.  Although there is no express time limitation, an objection must be made within a reasonable amount of time.

The split panel in the Benson decision rejected the WCJ’s reasoning, relying instead on the facts of this case Benson case.  Of particular note was the fact that applicant wanted to return to full duty and was following the treatment regimen of the treating physician.

However, the panel does note that “[o]ur conclusion in this case does not mean that there are no circumstances under which a QME report should not be allowed into evidence because of unreasonable delay in objecting to a treating physician’s opinion.”

It can be so difficult to watch the clock waiting for applicant’s right to request a panel evaporate slowly… slowly… and never knowing when that poisoned well is really dry.

So what can a defense attorney do to keep a panel request from coming out of the wood work?  Well, here are some factors to consider:

  • Have 20 or 30 days passed since the treatment report issued?  Although there is no firm restriction of 20 or 30 days (depending on applicant’s representation) for 4060 or 4061, the 20/30 time limit certainly provides grounds for what the legislature considered “reasonable.”
  • What is the reason for the delay?  Was the applicant being strung along, as the WCAB found in this case, or is this simply a case of workers’ compensation laches.
  • Is the applicant a repeat player?  Is it reasonable for a person who has had workers’ compensation claims in the past, claims that have run the gauntlet of the workers’ compensation system.  An applicant that has been represented in the past has no reason to claim that he or she didn’t know the benefits of hiring an attorney.  And, once the applicant is represented, there should be no excuse for a failure to timely object and request a panel.
  • Has the defendant sustained some sort of prejudice because of the delay?

Do you have a story where you’ve tried this argument one way or the other?  Was the result unreasonable? Unreasonably unreasonable?  Or perhaps reasonably unreasonable (it is comp, after all!)

Categories: Uncategorized Tags: