WCDefenseCA

Hello, dear readers!  Your humble blogger returns, eager to share with you the wisdom of this pivotal area of law that determines so much in the lives of so many… you guessed it! WORKERS COMP!

So, have you heard of the Miramontes case?  Applicant sustained an admitted industrial injury that left him effectively paralyzed from the waist down.  His treating physician had recommended home care services to help him perform basic activities of daily living, including getting in and out of bed, getting around, etc.  Defendant had been dutifully providing (or paying for) home care services for seven years until around October of 2013, when defendant wrote to the treating physician to have him submit additional requests for ongoing home care authorization.

When the good doctor did not provide a prompt response, even after repeated follow-up by defendant, in March the faucet was turned tightly clockwise (for those of us who grew up with electronic watches, that means they turned the water off).  Naturally, applicant had a problem with this.  In response to the facsimile reflecting this cut-off, applicant faxed back a prescription from the treating physician to provide home care “full time.”

Defendant then submitted the prescription to UR, and UR promptly denied any home care at all.

The matter proceeded to trial, and the WCJ ruled that defendant must continue to provide home health care (at $560 per week).

Defendant sought reconsideration, which was denied without comment by the WCAB.  A writ of review was likewise denied by the Court of Appeal.  In his report and recommendation, the WCJ noted “this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the [WCAB].”

Now, let your humble blogger begin by saying this issue is not as clear-cut as a “true-believer” from either the applicant or defense bar might claim.  I get the defense position completely – we wanted a prescription to make sure that the services are still necessary; and, once we got a prescription, we performed Utilization Review.  Additionally, IF it was wrong to threaten to cut off home healthcare after the treating physician failed to respond from October to March, that has little to do with the fact that a prescription was reviewed and failed the UR test.

We saw, for example, the case of McCool v. Monterey Bay where defendant’s UR of pain medication which applicant had been receiving regularly, prompted the WCAB to note that such adherence to the strict letter of the law with respect to UR might warrant an audit, especially when the result is putting an injured worker’s life in peril by suddenly cutting off medication.

In this case, applicant had been using (and, one could say, relying) on home health care for seven years.  Without any apparent documentation in change in circumstances, defendant obtained a prescription for the services, and UR then non-certified the treatment.

On the other hand, look at the position the WCJ took in this case: He did not order the defendant to provide medical treatment because UR was untimely.  Instead, he looked at the merits of this particular case, and, in these circumstances, found that it was appropriate for the treatment (home healthcare) to continue.

This standard or review is proposed in Senate Bill 563 – if there’s no change in circumstances, the defendant is prevented from re-submitting previously authorized treatment to UR.

But, at this time, that’s NOT the law.  Dubon II very clearly spells out that the WCAB has no jurisdiction to determine the validity of a UR determination EXCEPT as to whether it was timely.  In fact, your humble blogger has seen a string of cases recently which adhere to Dubon’s holding very closely, and seem to turn a blind eye to the reasoning used by UR.

So what’s different about this one?  Why did the WCAB decline to comment or provide analysis?  Why was this new exception (previously authorized ongoing care) not adopted or rejected by the Board?

It is well above your humble blogger’s pay grade to find the answer (your generous subscription fees are appreciated, nonetheless), but I suspect it has to do with the facts of this particular case – a treatment that is clearly necessary and, probably, vital on the one hand, and a result on the other hand that is, in your humble blogger’s estimation, procedurally correct.

Your humble blogger greets you this fine Monday morning feeling refreshed and well rested.  How, you might ask? Well, I got the same number of hours as always.  My dreams were haunted with benefits being provided in excessive of those required by law.  So how was I so well rested when my alarm went off?

I had a sleep number bed!

Now, you might be thinking “Greg’s just a humble blogger and a handsome defense attorney, how can he afford a sleep number bed?  Did he become an applicant’s attorney and get rich overnight?”  No, dear readers, not at all.  Through the magic of workers’ compensation, I was able to get a sleep number bed for free!

Just kidding, dear readers, but I do bring you the case of Carnes v. Auto Zone, wherein the applicant’s primary treating physician submitted a request for authorization of a sleep number bed, base, and pad, ($5,325.86 in costs) and the UR deadline was not met.

Applicant brought the matter before the WCAB, and, relying on Dubon’s holdings (recap: WCAB can only review UR determinations if UR deadlines are not met; in those cases, requests for authorization must still meet “reasonable medical necessity” threshold).

At the expedited hearing, the parties stipulated that defendant’s UR regarding the request for authorization for a Sleep Number bed was not timely, but defendant maintained that the requested “treatment” was not medically necessary.  The WCJ ultimately found that the sleep number bed was medically necessary, and ordered Defendant to provide it.  Defendant decided to sleep on it (get it?) and then sought reconsideration.

The Treating Physician, a back surgeon, noted that applicant’s current mattress was 15 years old and he needed a new one for his post-surgical recovery.

Now, we don’t get much from the WCAB opinion, other than the fact that two of the three commissioners adopted and incorporated the WCJ’s reasoning.  But, as your humble blogger has referred to one or two times in this blog, his old law school professor used to say “if you want to know what really happened, read the dissent [too].”

Your humble blogger’s favorite part of the dissent?  Footnote 3: “It may be that applicant has an old mattress and he would sleep better with a new mattress, just as other things are undoubtedly important to his recovery, like food, clothing and housing.   However, that does not make defendant liable to provide all of those things as reasonable medical treatment.”

Your humble blogger agrees with the dissent wholeheartedly:  It could be that a dog would help applicant recover because it would cheer him up.  It could be that a bank account with $1,000,000 waiting for applicant to claim it would motivate him to regain his good health.  It could be that daily sacrifices to the ancient pagan deity Grinbergia Bloggus would increase the chance of the surgery’s success.  None of that is in the record.

Now, the logical conclusion that applicant needs a new mattress is there without being developed.  After all, the WCAB has previously required the construction of wheel-chair ramps on an applicant’s vacation home.  The WCAB has previously shifted to defendants the cost of an applicant exceeding work restrictions because his second-floor apartment didn’t have an elevator.  So, it’s not entirely out of line for the WCAB to require appropriate medical equipment at home, such as replacing an applicant’s 15-year-old mattress with one that’s newer and better.

In fact, it’s entirely possible that the treating physician has real, sound, un-rebuttable evidence that a sleep number bed is specifically necessary for post-surgical recovery, as opposed to just a decent new mattress that will stay firm for 2 years instead of being guaranteed for 10.

As the dissent very effectively points out, none of that is in the record.

Now, if you’ll excuse me, I’m going to sell my doctor on the fact that a cruise to Alaska is medically necessary for my industrial paper cut.  Wish me luck…

As will every victory for the employers and insurers, little by little, the gains are chipped away.  So too for the ground gained in Dubon, whereby the WCAB held, en banc, that just about every UR dispute, save timeliness, goes to IMR, where a secret ritual is held and, after invoking the spirit of the medical treatment deity “Medi-Nessisitus,” a ruling is ultimately rendered.

So, your humble blogger now brings you the case of Shanley v. Henry Mayo Newhall Memorial Hospital, a panel decision in which the WCAB held that for a UR report to be timely, as discussed in the Bodam case, all time requirements must be complied with, including being communicated in a timely fashion, rather than just a decision being reached.

In Shanley, both UR decisions were reached within five business days, and the decisions were mailed on the same day that the decision was reached to applicant’s counsel, applicant, and the physician who submitted the request for authorization.

However, the WCAB concluded that there was insufficient evidence that defendant had communicated the denial of authorization by telephone within 24 hours of reaching the decision, even though the UR report reflected that a peer-to-peer had been attempted with the treating physician and a message was left.

Citing Labor Code section 4610(g)(3)(A) (“[d]ecisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision … [d]ecisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director” and California Code of Regulations section 9792.9(b)(4) (“[d]ecisions to modify, delay or deny a physician’s request for authorization prior to, or concurrent with the provision of medical services to the injured worker shall be communicated to the requesting physician initially by telephone or facsimile” the WCAB concluded that defendant had failed to establish that the phone call to the treating physician by the UR which appears to have been scheduled as part of a peer-to-peer review, communicated the result of the UR determination.

The panel decision noted that, without an explanation as to the content of the message that was left with the treating physician, there was no basis upon which to conclude that the message communicated the denial of authorization.

The issue of medical necessity was ordered returned to the trial level.

So, dear readers, do you think it’s time for the UR vendors to start preparing a declaration under penalty of perjury that a phone-call or facsimile followed every UR decision?  Or, perhaps, UR physicians should start using the same automated service used by dentists and treating physicians to remind us of our appointments?

Because UR is typically a pretty rushed affair, and timeliness appears to be the prevailing challenge against IMR (other than constitutional grounds), perhaps we’ll see more of this potential weakness exploited by applicants in the near future, and proactive steps should be taken to nip this in the bud.

Happy Wednesday to you, dear readers!  Last week, some of your humble blogger’s acquaintances knocked on his door seeking help.  Not really interested in my lawyerly wares, they instead asked for my intervention on their behalf with a certain deity who controls the storms.  After sacrificing the appropriate number of goats (too few would have been insulting), your humble blogger secured a year’s worth of rain for California.  Unfortunately, the fine print discussed delivery as all on one day, and all in the Bay Area.  In other words, dear readers, stay safe out there – the storm is a-brewin’.

Speaking of storms a-brewin, there’s going to be another one on the issue of Utilization Review.  I know, I know, it’s settled law –Dubon has made clear that if the UR report is timely, that’s the end of it.  Right?  There’s no monster under the bed anymore… is there?

The case your humble blogger brings to your hawk-like attention this fine morning is that of Jovel v. Sisters of the Holy Name.  In that case, applicant filed for an expedited hearing, and eventually argued that defendant’s denial of authorization for treatment requested by the primary treating physician was invalid because the underlying Utilization Review decision suffered from a material defect, to wit, the UR physician was not provided relevant information regarding past treatment.

The WCJ found that the UR report was materially procedurally defective, but, instead, ordered the parties to return to UR to provide a full documentary record to the UR physician and obtain a new decision.

By way of background, dear readers, the WCJ’s decision was issued during that short period between Dubon I and Dubon II.

Ok, so we have what the WCJ has found to be a materially defective UR decision, but, as the WCJ reasoned – even with the assistance of the materials not previously provided to the UR physician, how is the WCJ supposed to decide if this treatment is really necessary or not?  After all, if the Primary Treating Physician’s opinion was sufficient, why would there be a UR?  If a Juris Doctorate makes one  a doctor, why does the restraining order presently in effect against your humble blogger prohibit me from performing any more surgeries?  Good questions, every one.

Applicant petitioned for reconsideration, but defendant did not.  So, while applicant was able to challenge the WCJ’s order to go back to UR, the defendant did not timely seek reconsideration of the finding that UR was defective.  The WCAB reviewed the relevant medical records, and found that the WCJ’s determination that UR was defective holds, but that the supplemental reports that were not provided to UR justify the requested treatment.  The WCAB ordered defendant to authorize treatment.

In other words, dear readers, it may be necessary to seek reconsideration of any finding relating to the validity of UR, unless, of course, the issue is timeliness.

If you don’t hear from me on Friday, dear readers, your humble blogger is probably without power, and his computer is in a box of rice drying out.

Your humble blogger had a brilliant idea recently: why not skip the coffee for a few days?  What could possible go wrong?

Well, I came *THIS* close to filing a workers’ comp claim for the resulting withdrawal symptoms (workers’ comp drives me to drink coffee, among other things, you see).  In the words of Master Yoda: “Path to the dark side, comp is.  Comp leads to exhaustion; exhaustion leads to coffee; coffee withdrawal leads to suffering.” (Thanks for the correction, MC)

So, if your humble blogger suffered so greatly from declining coffee for just a few days, how badly would an injured worker have suffered if deprived of serious pain medication upon which he or she relied for any extended period of time?

Consider, if you will, the matter of McCool v. Monterey Bay.  Applicant was in a car accident way back when in 1983, resulting in several back surgeries, and ultimately a 52% award which included future medical care.

Well, lo and behold: a UR decision elected to deny authorization for various pain medications which applicant had been receiving regularly.  Defendant elected to override UR and provide the pain medication anyway, but three months after the UR denial, applicant requested an expedited hearing out of concern that defendant would one day withdraw its good will.

At the hearing, the WCJ found applicant is entitled to future medical treatment, including the pain medication, until there is a documented change in circumstances, even though defendant continued to provide the medication at the time of the hearing.

Well, defendant sought reconsideration, and the WCAB granted.  Initially, the WCAB held that absent a finding that the UR report was untimely, there’s no basis to review the merits of the UR decision, as per the en banc Dubon holding of the WCAB.  Additionally, as applicant was receiving the sought-after medical treatment, there was nothing for the Board to do, as the commissioners and WCJs are not in the business of issuing advisory opinions to become effective in the event of some possibility in the future.

That being said, the WCAB also pointed out that the UR decision was internally inconsistent, both citing the need to slowly taper off pain medication, and then deciding to make applicant go cold turkey.  Well, in the words of Homer Simpson “going cold turkey isn’t as delicious as it sounds.”

The WCAB cautioned that blind reliance on a UR decision that is internally inconsistent could result to a defendant’s referral to the administrative director for investigation and possible penalties.

So, all in all, a happy ending – applicant gets the treatment she needs!  The defendant gets a victory!  You get a blog post!

Here are some thoughts from your humble blogger:

So, for each UR decision, it’s not only important to review the decision for timeliness, but it appears that there is some threshold the WCAB would like to see met, which in this case was internal consistency.  It would be interesting to note if the same burden is placed upon the defense for multiple UR decisions.  For example, if UR denies surgery because of an injured worker’s weight, but the next UR decision denies lap band surgery because the injured worker is not overweight enough – is that internally inconsistent?

Also, it looks like the applicant took three months to file for an expedited hearing on the matter of medical treatment – shouldn’t there be some time limit on challenging a UR decision for any reason, timeliness or otherwise?  After all, don’t circumstances change, opinions become stale, etc?

As far as your humble blogger is concerned, defendant did the right thing in this case – it’s both prudent and, dare I say it, human.  But, often enough, it’s easy to put away a “denied” UR decision and let the applicant worry about the particulars, such as requesting IMR or challenging timeliness.  This panel opinion serves as a cautionary tale for all of us.

So, there you are – triumphantly stroking the recent IMR decision which upheld the UR determination that the injured worker is not entitled to fresh shipments of caviar to help with his industrial paper cut.  What a wonderful feeling – justice is done, the system worked, and now the price on caviar will not sky-rocket out of your price range, such as this scene captured at Occupy Wall Street so many years ago…

Well, the injured worker decided to appeal the IMR decision… to his treating physician.  “But Dr. Beluga, I need the caviar to make the boo boo go away, it’s the only thing that works!”  Well, seeing as how Dr. Beluga is a strong believer in the medicinal properties of caviar, he submits another request for authorization, thinking this one will fall through the cracks.

Are you required to process this request again… and again… and again… until between UR and IMR, it would have been cheaper to authorize the treatment?

Well, probably not.

Labor Code section 4610(g)(6) provides that “[a UR] decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”

So, Dr. Beluga can only request caviar injections but once a year, unless his second request for authorization is “supported by a documented change in the facts material to the basis of the [UR] decision.”

Now, here’s an interesting question for all y’all: Form 9785.5, the Request for Authorization form, offers options at the top of the form: “New Request” or “Resubmission – Change in Material Fact.”  What happens when the doctor submits a report with his or her RFA discussing the change in material fact, but fails to check the “resubmission” box?  Can the defense ignore the same requested treatment by the same physician?  Your humble blogger doesn’t know, but if faced with this situation will likely argue for the “Resubmission”

In fact, a recent panel opinion (Martha Reyes v. Target) held just that: a defendant is free to ignore the RFA for the same treatment by the same physician which UR recommended be denied less than 12 months before.  And, when in conjunction with Dubon, carriers can effectively budget one UR and one IMR per treatment request per year.

Have a good weekend, dear readers!

Come on, dear readers, how often does your humble blogger, jaded by the world of workers’ compensation and made cynical by so many of those that dwell in it, have good news for you?  Well, today is one of those days.

You remember the countless blog posts your humble blogger diligently prepared on the subject of Dubon can now be forgotten.  The endless analysis done by your diligent attorneys on whether or not a particular UR decision can survive a merit-based challenge can now be stricken from your bill (just kidding).  Why, you might ask?  Has Greg started advocating civil disobedience?  Is this a call to arms?  Is this mad defense attorney seeking to violate 18 U.S. Code § 2385?

Relax, dear readers!  Until there is a return of prohibition or a ban on coffee, your humble blogger will probably not be called for armed revolt.  However, it is with great pleasure that I can report that the Workers’ Compensation Appeals Board, in an en banc decision, has revered most of its prior holdings with respect to the susceptibility of the UR process to non-IMR related challenges.

Basically, the WCAB held that “[a] utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.”

So, if UR denies the request for authorization in a timely fashion, even if the stated reasoning appears to be “quarter came up tails” the decision goes to IMR.

If the UR decision is not timely, then the injured worker still bears the burden of proving that the requested medical treatment is medically necessary.

Your humble blogger’s favorite quote from the latest Dubon decision?  “The legislature has made it abundantly clear that medical decisions are to be made by medical professionals.  To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.”

So, like the bad guys in Lethal Weapon 2, UR can visit the legal world from the medical, make a bunch of applicants upset, and then claim diplomatic immunity, of sorts, subject only to IMR.

Now dear readers, what does that make you think? What does that make you feel?  What does it make you think about what you feel?

Welcome back from your weekend, dear readers.  As you know, your humble blogger is not only a font of information (and sometimes misinformation), but is also the recipient of may mutterings and whispers in the workers’ compensation world.  Sometimes these whisperings are from loyal and generous readers, sometimes from ghosts of cases well denied (admittedly, after the second glass of Diplomatico rum, it is hard to recall the source).

In any case, word around the proverbial water cooler is that Dubon is coming down soon.  Whether this is wishful thinking of well-informed gossip, your humble blogger cannot say.

But, in the meantime, we must deal with Dubon’s children.  In this particular case, that of Newton v. Jack-in-the-Box, Dubon strikes again!

Newton has to do with an applicant seeking treatment as recommended by her primary treating physician, namely aquatherapy.  Utilization Review had issued a delay notice, signed only by a registered nurse.  Ultimately, the UR denied the treatment and applicant filed a DOR for an expedited hearing, arguing that the UR report was defective.

Initially, the WCJ agreed with applicant, because the UR report had referenced some number of additional pages of medical reports or records reviewed in the case.  On reconsideration, the WCAB disagreed with the WCJ, noting that such a minor violation of Rule 9792.9 constitutes a defect that is “minor, technical, or immaterial.”

And now, dear readers, the story takes a bad turn.  The WCAB found another reason to overturn the UR decision: the delay was signed by a nurse, rather than by a licensed physician, and as we all know, Labor Code section 4610(e) requires any delay of requests for authorization of medical treatment to be made by a licensed physician.

Accordingly, the WCAB issued a notice of intention to issue an order awarding applicant medical treatment (aqua therapy) as originally recommended by the primary treating physician.  Because the WCAB found a reason to overturn the UR decision that had not been raised at trial, the defendant is entitled to present its arguments in response.

Now, your humble blogger is not representing either of the parties in this case, and would not presume to instruct learned counsel in the discharge of its duties.  That being said, your humble blogger would submit that the following arguments should be made:

1. To the extent that the section 4610(e) was violated, is the Utilization Review system really impeached by having an RN sign a delay notice?  After all, the WCAB just noted a clear violation of Rule 9292.9, and brushed it aside as a minor technical violation, before deciding that a short delay in a decision was sufficient to “undermine the integrity of the UR decision.”
2. Even if UR has some defect, isn’t it appropriate to send the matter back down to the WCJ to further develop the record on the issue of medical necessity?  Dubon held that “[i]f a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.”  In this case, even if there is a determination that UR is defective, there still needs to be a decision AFTER that, as to whether the injured worker is entitled to the treatment based on substantial medical evidence.

   If you will recall, dear readers, the Dubon opinion itself did not award medical treatment to the injured worker, but instead provided an order to “return the matter to [the WCJ] for further proceedings and a decision on whether the [treatment] is reasonably required.”

3. Finally, even if this panel of commissioners is not inclined to remand the matter back to the WCJ to determine medical necessity, doesn’t the defendant automatically win?  If there is to be no hearing or development of the record on medical necessity, how is the applicant to carry its burden that the treatment is necessary, as expressly required by Dubon?  Whatever the procedural faults of the UR decision, if any, the UR physician’s logic still applies, and can be copy-pasted into any brief on the issue of medical necessity.

Your humble blogger wishes the defense in this case all the luck in the world.

Have a good week, dear readers!

The Dubon decision continues to make ripples in our calm little pond of workers’ compensation.  Do you remember how great it was to not be an applicant prior to Dubon?  The law was very simple: UR, IMR, done.  Now every single UR decision that doesn’t give away the farm has to survive a Dubon challenge, putting into play the issues of whether adequate records were reviewed or whether it was timely.

No exception can be found in the recent panel decision of Andronico v. La Rocca Seafood. Therein, the WCJ found that the UR decision was defective because the UR physician who had denied the treatment request was not competent to render a decision on this question of medical necessity.  To wit, the request was for spinal surgery, and the UR physician, though Board Certified by the American Board of Orthopaedic Surgery, had not performed a spinal surgery within the last ten years.

The WCJ rule the UR was defective, reasoning that Labor Code section 4610(e), required the requested treatment to be within the UR physician’s scope of practice, with practice being the operative word.  The WCJ found the fact that the UR physician’s lack of practice in the area in the last ten years to be such a material defect as to undermine the integrity of the UR decision.

On review, the WCAB disagreed.  The Panel Opinion ruled that “[a] physician’s specialty, or area of board certification, or level of clinical practice, is not dispositive of his or her competency.  Section 4610(e) requires only that the doctor be competent to evaluate the specific clinical issues, and that the services at issue are ‘within the scope of the physician’s practice.’”

Ultimately, though, the WCAB did rule that the UR decision was defective due to an inadequate records review, and sent it back down to the Board for a determination on medical necessity.

One thing to consider in all this is the scales of justice and our system.  On the one hand, we have the injured worker’s right to medical treatment, and the ultimate decision on Dubon may rule that the entire treatment right will be determined by anonymous figures without a right of appeal.  On the other hand, we have the possibility of every single case having to address these vague questions: how many surgeries in the last 10 years qualifies a physician to render an opinion? How many years in practice?  How much of the medical record must the physician review to satisfy the Dubon requirements?

Remember, dear readers, the whole reason why IMR came about was to take the uncertainty out of the equation – to stop the uncertainty that comes with every other UR physician’s resume or every other Board, or every other make-up of the panel on reconsideration.

Your humble blogger further points out that the uncertainty breeds litigation, the blurred standards invite the adversarial process.  What the heck are we supposed to do with scope of practice, when one UR physician is Board certified but has performed no surgery in the last ten years, and another might not be Board certified but performs five a month?

In the purely practical sense, however, while the WCAB considers the merits of each position int the Dubon case, the unspoken sense is there that Dubon has created a flood of Reconsideration petitions for the commissioners to address.  Here’s hoping it tips the scales for a reversal of Dubon, which your humble blogger intends to refer to (because he’s oh-so-clever) as “Duboff”.

UPDATE: The WCAB has decided to proceed as described above.  Navarro is now an en banc opinion.

Alright dear readers, you’ve made it – it’s Wednesday, and the ripples of last week’s en banc decisions are starting to fade.  Before too long, it will be Friday again, and it will be business as usual in the world of workers’ compensation.

The second decision of the two released last week by the WCAB, which seems to have received considerably less attention than the Dubon case, is that of Ismael Navarro v. City of Montebello.  Before I go into the details of that case, I’d like to relate to you what I overheard being put before a WCJ at one of the Boards in the Bay Area.

The parties had agreed to use a particular AME for applicant’s back injuries (a CT and a specific).  After a re-evaluation, the AME opined that applicant had actually sustained a third back injury, at which point the applicant’s attorney requested a panel as to that injury.

The defense attorney promptly filed a DOR, and the parties appeared before the Judge to argue the issue of whether applicant’s agreement to use an AME binds him to that AME for all future questions of injury (particularly if it is the same body part at issue).  Applicant argued that the arrangement to submit all issues to an AME was one of contract, and there was no agreement to an evaluator for future injuries.  The Defense attorney argued that this was the same body part and still the same employer, therefore the original agreement applied to this new, alleged injury.

The Judge offered some guidance towards mediating the dispute, as good judges often do, but neither attorney nor the Judge could think of any authority that controlled on the issue.  Now they do.

In the Navarro matter, applicant had three injuries, allegedly sustained while employed by the same defendant, and all three were to the same body parts.  Pursuant to Rule 35.5(e), the defendant argued, the same qualified medical evaluator should have been used for all three injuries.

Upon review, the soon-to-be en banc decision held that 35.5(e) was inconsistent with the labor code and is ruled invalid, allowing an injured worker to seek a new panel for each subsequent injury.

In short, every additional injury claimed can warrant a new panel, so, potentially, you could have three QMEs all opining on different back injuries.  You would also have the added bonus of triple the costs of a QME, with potentially as many depositions and record reviews.

I hate to say this – but bad, bad, bad, result!

Turning back to the matter discussed above, it’s true that this case is not binding with respect to AME agreements.  However, it strikes at the very heart of the idea that one evaluator’s opinions will be binding for all future injuries.  It gives the party that didn’t get to pick a specialty last time a second bite at the specialty apple, and, best of all, it will flood the WCAB with the litigation that workers’ compensation Judges love more than any other: specialty disputes!

So, while this gets sorted out on Appeal, or (hopefully) emergency legislation comes through to amend the Labor Code (don’t hold your breath), what can you do to avoid such messes?  Well, not much.

It is questionable whether any agreement for injuries yet to occur could be enforced against the applicant, and so any efforts to agree to use the same evaluator for the future would probably be worth less than the paper this blog is printed upon.

Now, fortunately, this is only a notice of intention to issue an en banc opinion, and the parties and the DWC are invited to submit arguments why there should be a different (or the same) holding.  Generally speaking, statutes are not supposed to be interpreted in such a way that would produce an absurd result, but that’s what we would have here:

Injury 1 is evaluated by QME A; who finds that applicant has 8% WPI for his back injury;

Injury 2 is evaluated by QME B; who finds that applicant has 4% WPI for his back injury, and 10% of it can be apportioned to Injury 1;

Injury 3 is evaluated by QME C; who finds that the impairment is total, but not caused by any industrial injury.

Best of all, each QME has a different set of work restrictions.  Now, when applicant has not yet resolved his first injury but has already claimed a second, which work restrictions does the employer follow?  How does apportionment work when the three QMEs are all giving different opinions on every issue?  As the joke goes, when you put three QMEs together for one night, you end up with 5 opinions…

And, best of all, when will the WCJs get to do any substantive work when nine out of every ten hearings is about which panel and which specialty controls for each injury.

Unfortunately, interpreting the Labor Code to invalidated Rule 35(e) will produce an incredibly damaging and harmful result, if not an absurd one.  But perhaps the Legislature will have to act to clean this mess up.

To all my beloved readers that have Sacramento on speed dial, I urge you to consider pulling your puppet strings to fix this with an statutory amendment as soon as possible.