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Citeable Authority For a Time Limit on LC 4061 Objections?

January 17th, 2014 No comments

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

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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!)

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