WCDefenseCA

Happy Monday, dear readers!  Did you know that sometimes regulations are written with invisible ink? It’s true! Crack open the books and look at Rule 35.5(e)!  If you ask those in the know from the Workers’ Compensation community, that rule is practically invisible.  At least, that was the holding in the WCAB’s en banc decision in Navarro v. City of Montebello (2014) where the WCAB held that when a claim form for a subsequent injury is filed after a QME evaluation for an open claim, the applicant is not required to return to the same QME to address the subsequent injury.What’s the result?  Applicants can remedy their dissatisfaction with a QME’s report by doctor shopping for a second QME by filing an additional claim, typically a cumulative trauma.  This results in increased delays and expense for defendants who bear all litigation and med-legal costs in workers’ compensation matters.  The effect of Navarro and the position that rule 35.5(e) is invalid serves to drive up costs for defendants in this way.The recent panel decision in Sahli v. Nordstrom solidifies this position.  There, defendant petitioned for reconsideration of several findings by the WCJ, among them that the second panel obtained by applicant was valid based on Navarro.  The WCAB denied reconsideration, adopting and incorporating the WCJ’s report on reconsideration.   In that report, the WCJ wrote “Even before Navarro, the appeals board regularly ignored CCR 35.5(e) and allowed the parties, applicants in particular, to obtain new evaluations for different injuries.” Your humble blogger agrees with the WCJ’s opinion as to the status of the law – Navarro allows this process and offers no defenses for employers.  Further, Navarro does not allow the same remedy to employers – if defendants file a CT claim against themselves in the hopes of securing an additional panel, what mechanism exists for forcing applicant to attend such an evaluation?  A petition to bar and suspend benefits under Labor Code section 4053 offers no remedy, as benefits would not be barred nor suspended in the original claim. So, what would your humble blogger wish if he could rub the Legislative genie just the right way?  For the next reform to include a Labor Code section giving teeth to 8 CCR 35.5(e) so that it cannot be so easily ignored.  Applicants should not be entitled to doctor shop by filing new claims and getting new panels, and defendants should not be forced to incur additional costs when they do.  At the very least, in such cases, a petition to bar and suspend should apply to ALL pending claims.  Though a weak remedy for the pain of additional costs, at least this would level the playing field in terms of discovery and developing the medical record. 

What do you think, dear readers?  Is your humble blogger being naïve in wanting a level playing field?  Or is it not too much to ask that we enforce a regulation that’s been on the books since 2009?

Happy Monday dear readers!

Here we are again, slugging through our beloved swamp of California’s workers’ compensation system.  Your humble blogger brings you a panel decision today which touches on everyone’s favorite subject: panel disputes!  Indeed, when the California legislature deemed fit to strip parties of their rights to retain their own experts as part of the SB-899 reforms, the car-salesman pitch was a savings in costs.  I wonder how much money the system is saved having to litigate every panel request and specialty.

Anywho, let’s take a look at the panel decision in the case of Ceballos v. Access to Independence of San Diego.  The issue here was, of course, yet another panel dispute.  Applicant was evaluated by a psychology PQME in 2019.  When defendant tried to set a re-evaluation in December of 2020, the QME advised she was only willing to engage in a remote, telemedicine evaluation. 

Defendant requested a replacement panel on two grounds – the first that because the QME was unwilling to do an in-person evaluation, and the second because no appointment was available within 90 days of the request as per rule 31.5(a)(2). 

Applicant’s counsel objected to the replacement panel request and filed a DOR, and the matter eventually proceeded to trial.  The WCJ held that defendant was not entitled to a replacement panel and the WCAB concurred.  Relying on Rule 46.2 the WCAB noted that the rule provided that a party cannot be unreasonably denied, and that the remedy for an alleged unreasonable denial was to file a DOR and bring this to the WCAB for a hearing.  The WCAB noted that a replacement panel was not the appropriate remedy, but rather a hearing by the WCAB.

The WCAB also held that the time limits for an evaluation in rule 31.5 apply to an initial evaluation, and not subsequent re-evaluations.

So, a few thoughts on this.  First off, your humble blogger agrees with the WCAB opinion in Ceballos of course that agreement to telemedicine cannot be unreasonable denied.  But, with that in mind, what is a reasonable basis upon which to object to telemedicine?  If the QME can observe the applicant via the computer screen and hear the applicant via the audio functions, what would be the hesitation.  Now, your humble blogger would be among the first to object to a telemedicine QME evaluation for an orthopedic issue – a doctor cannot effectively take measurements of range of motion or check for Waddell’s signs of magnification over a ZOOM conference.  But with a psyche evaluation, telemedicine seems appropriate. 

What’s more, telemedicine presents a feasible opportunity for the defense community to test its rights to send a nurse case manager to observe the evaluation, and see if interpretation of the law can be forced to allow recording of a psyche exam by the defense, as discussed here.

But, on to the other point by the WCAB.  Is the limit of 60-90 days to set an evaluation really only for the initial examination?  Can the parties really be held hostage by a QME who won’t re-evaluate applicant for a year or two?  The WCAB’s decision in Ceballos focused on the language in 31.5(a)(2), specifically “a QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment” (emphasis added) and cited the panel decision of Cienfuegos v. Fountain Valley School District, a 2011 panel opinion.  This same reasoning is applied in the 2019 panel decision of Gustafson v. City of Mountain View.

So, what is a party to do when the QME cannot or will not set a re-evaluation within a reasonable time?  Well, section 31.5(a)(6) does provide a catch-all: “the evaluator who previously reported in the case is no longer available.”  Granted, it’s bit of a stretch, but if the WCAB interprets 31.5(a)(2) to apply only to initial evaluations, then perhaps a QME that refuses to provide a reasonable re-evaluation date is “unavailable” under section 31.5(a)(6).

What do you think, dear readers?  Does this interpretation violate the California constitution’s requirement to “accomplish substantial justice in all cases expeditiously”? 

Don’t be shy, dear readers… tell me what you really think!

Happy Monday, dear readers!

I hope my little April Fools’ joke was taken in good spirits and forgiven.  Given the news of the day, your humble blogger could hardly resist.  Well, why don’t we let sleeping dogs lie and move on with what’s going nowadays.

As you may recall from my earlier blog post, the WCAB recently ruled that the 5-day mailbox rule, at least for workers’ compensation matters, applies to all manner of service except personal service: mail, facsimile, or e-mail.  The rules of the civil world, that provide two days extra time to act for e-mail service, don’t apply to workers’ compensation matters.

Well, we recently received more guidance, although this time from the Court of Appeal, on service rules.   So first a bit of background – California Labor Code section 4062.2 allows a represented party to request a panel 10 days after a delay notice is issued by the employer.  Of course, as we know from the en banc series of Messele opinions, the mailbox rule applies to the trigger of the panel process, so it’s actually 15 days for in-state service.

What happens when the party receiving the delay notice is in California, but the party sending the delay notice is not?  If XYZ Insurance Co. sends the delay notice from Alabama to an applicant in California, is the service time 5 days or 10?  After all, 8 CCR 10605(a)(2) provides for an extension of ten days “if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside of California…”

You might think it obvious, but there is clear disagreement on this point.  In the recent case of Trigueros v. Gonzalez Ag, Inc. the trial judge found one way, the WCAB commissioners found the other way, and the Court of Appeal reversed the WCAB!

Applicant, a resident of California with California-based attorneys, filed a workers’ compensation claim and the employer’s insurance company responded by mailing a delay notice from its office in Missouri.  Applicant requested a panel on the sixteenth day from service of the delay notice, and defendant objected, arguing that since the insurance company mailed the delay notice from outside of California, service as 10 days and not 5 – applicant’s panel was premature.

At trial, the WCJ found that the panel was valid and not premature, but the WCAB reversed, interpreting section 10605 to mean that if either the sender or the recipient is outside of the state of California, the time for service is 10 days rather than 5.  Just a side note, dear readers, if this is the correct interpretation, then what would be the proper service time if both the sender and the recipient are outside of the State of California, but both within the same state?  If a California applicant moves to the same state where his employer’s insurer keeps its office, would that mean that we’re back to down to 5 days?

Well the Court of Appeal, in an UNPUBLISHED opinion, reversed the WCAB, interpreting section 10605 to only apply to the recipient: “the location where any triggering mailing originates from is … irrelevant.” 

Now, of course, since the California prohibits citation to unpublished opinions, your humble blogger urges you not to march into court waiving this opinion around.  However, this provides further guidance on when to request a panel and when to (or not to) cry foul.

Chins up, dear readers, the week is just beginning!

Happy Monday, dear readers!

We are back, dear readers!  And whether your attention has been diverted to Thanksgiving, travel, black Friday, or cyber-Monday, the show must go on.  As the spoonful of internet wisdom says, “even if you are not ready for the day, it cannot always be night.”  And so, dear readers, boldly and firmly, we go on to handle workers’ compensation.

Your humble blogger’s readers, whether they know it or not, have been screaming out for another blog post about panel disputes.  And who, in the grand scheme of things, is the humble blogger to refuse that which literally no one has knowingly asked for?

Thus, I bring to your attention, or what I can capture of it between bites of Turkey leftovers, the panel decision in the case of Gonzalez v. Central California Child Development, Inc.  Applicant, a janitor, alleged an industrial injury to the right ankle.  The orthopedic PQME was no longer available, so the WCJ ordered the parties to get a replacement in the same specialty.  Applicant sought reconsideration, however, arguing that there should be an order for an additional panel in the specialty of rheumatology to address applicant’s complex regional pain syndrome.

The original QME in this matter passed away, so it was necessary to replace him via a new panel in the same specialty, orthopedic surgery.  However, the WCAB panel did not find that the parties should first submit this matter to the new orthopedic QME to determine if (1) there is CRPS, and (2) whether the orthopedic QME can address all issues. 

Instead, the WCAB response looked a little like this:

From the panel opinion: “In this case, it appears that a second panel is warranted based on the record in order to promote an expeditious resolution of this case.  Based on [the deceased QME’s] deposition, including the exhibits attached to it, a rheumatology panel will provide additional evidence on the causation of CRPS.”

The procedure for obtaining an additional panel in a different specialty, as would be the case with this second panel in rheumatology, can be found in 8 CCR section 31.7.  There, the guidance is to try to have the original AME or QME resolve any new medical disputes (such as the existence and/or cause of CRPS) before obtaining a new panel.  That hasn’t happened here.

Unfortunately, the original QME passed away and defendant was not able to complete discovery on an opinion regarding CRPS.  Further, the new orthopedic PQME may be able to address this matter without defendant incurring the significant cost of an additional medical-legal evaluator on this case.

Instead of expediting the resolution of a case, a second QME in a different specialty often grinds progress to a halt.  As soon as discovery is complete with one QME, the opinions of the other are suddenly “stale” and the entire process must begin again.  A party inclined to drag out a case and delay resolution certainly has ample opportunity to do so when there are two QMEs to comment on the claim.

If your humble blogger were king of workers’ compensation, absent an agreement to the contrary, the parties would have to go through the process outlined in section 31.7 before the defendant is forced to incur the costs and delays of a second QME.  But, dear readers, we are Americans, and we tolerate no kings, so here we are instead.

Straight on till Wednesday dear readers!

So, dear readers, gather round – it’s story time!

When your humble blogger was knee-high to a grasshopper, a teacher came around to collect a homework assignment.  When I failed to produce said assignment, the teacher chided me for not doing it.  Showing, at a young age, the likelihood of a career in law, I retorted that she could in no way establish that I had not done it – after all, absence of evidence is not evidence of absence.  I proposed that we just agree to disagree, but the arguments carried no weight.  Such is life.

Zoom forward to December 2020 as the WCAB is reviewing a defendant’s petition for removal in the case of Panameno v. Northgate Gonzalez Market.  Applicant alleged injury to a variety of body parts in 2015 only to have the claim denied by defendant. 

Applicant was evaluated by Dr. Satish Kadaba in 2017 and then… well… from the panel opinion it looks like nothing happened until 2020 when defendant sought to replace Dr. Kadaba because there was no response to defense efforts to set his deposition.  A search of the QME database by your humble blogger at the time this blog post was drafted did not show a Dr. Kadaba as a current QME. 

The Medical Unit responded to the replacement request by telling defense counsel to take it up with the WCAB.  At trial on the issue, defense argued that it could not locate Dr. Kabada to submit to cross examination and also had evidence that, at the time of the 2017 exam, Dr. Kabada was not certified as a PQME. 

The WCAB affirmed the trial judge’s denial of defendant’s petition to strike the reports of Dr. Kabada and issue a replacement.  With respect to evidence that Dr. Kabada was no longer a PQME at the time of the 2017 exam, defendant apparently made reference to an exhibit that was not offered as evidence.  Nor was there evidence in the record sufficient to find the PQME was not available, according the to the WCAB panel.

The petition was denied and defendant was invited to raise its objections to the reports at the trial of the case-in-chief.

So, here are some thoughts on the matter from your humble blogger.  First off, I would submit it is absolutely unfair that the PQME gets more slack than young humble blogger did – shouldn’t Qualified Medical Evaluators bear the burden of showing they are, in fact, qualified?

Aside from that, Rule 35.5(f) of the California Code of Regulations requires a QME to make himself available for deposition within 120 days of notice of deposition.  Well, we’ve all read about those charming cases where SWAT teams have a 48-hour standoff with an empty house – and this is the workers’ comp equivalent of that.  Is the defendant supposed to notice a deposition and then wait 120 days to start the process of getting a replacement?

Such an interpretation would seem to conflict with the California Constitution’s provision that the Legislature must “accomplish substantial justice in all cases expeditiously…”  So either defendant must wait those 4 months to start the process of a replacement panel, or the defendant should take action when a medical evaluator fails to respond within a reasonable amount of time and with reasonable efforts to set a deposition.

Finally, wouldn’t the process of replacing a PQME for any reason be simpler if the Medical Unit responded to a replacement panel request by asking a response from the QME, and, absent such a response, granting the request?