WCDefenseCA

Alrighty dear readers!  Here we are again, celebrating Adams Family Day Wednesday with just another day ready for fun.  So since last blog post was about a current favorite TV show, I thought I’d share with my readers a favorite oldie movie of mine too: In 1992 two parents are abducted onto a planet of intellectually challenged denizens and get involved in a civil war to help the good guys regain the throne of the planet.  The movie was called Mom and Dad Save the World and if you haven’t seen it yet I highly recommend it!

Anywho, one of my favorite lines in that movie is when one of the good guys is trying to rally his people to help him storm the castle and tells them “what we lack in intelligence we make up for in good intentions.”

So, anyways, let’s take a look at the current med-legal fee schedule.  In a supreme bit of irony, the fee schedule went into effect on April Fools’ Day in 2021.  Now that we’ve had it for over a year, what results can we see from this new system?  Did the extra money attract the top physicians to write excellent reports and minimize the need for more med-legal services?  Are cases now resolved more expeditiously with an accurate level of benefits and lower costs for employers?

Come on people – it’s been over a year! Certainly, there are now lots more QMEs so that the wait times are lower and the reporting is more consistent, right?

Well, the CWCI has prepared a study reflecting that compared to 2019, there’s been more than a 50% increase in payments for face-to-face exams and almost 40% for supplemental reports.  $3 per page in review as per the fee schedule has also drastically increased the cost of an initial exam by almost $2k. 

According to the CWCI, the fee schedule resulted in a 3% increase of QMEs in the active evaluator pool as compared to 2022 and 1% less than 2019!  In other words, the new fee schedule has enriched existing QMEs with huge fees, but has not attracted more QMEs to the industry. 

The new regulations have also failed to provide recourse for employers when reports are not substantial medical evidence or to recoup costs.  There is practically no disincentive to produce intentionally vague or incoherent reports to entice parties to depose the doctor or seek a supplemental report, generating more fees for the doctor and more costs for the defense.  We all recognize those doctors on our panels that will force at least three evaluations, four depositions, and seven supplemental reports before there’s enough in the record that you can get a ruling other than “develop the record.”  Looking at you, Dr. Nick Riviera…

via GIPHY

Of course, this is great for the applicant bar – the more expensive the claims process is due to med-legal fees the more inflated the “nuisance” value of each claim is.

But, before you become dismayed, dear readers, please recall that wonderful line from Mom and Dad Save the World as referenced above.

Till next time, dear readers…

Happy Friday, dear readers!

So what’s going on in the world of workers’ compensation? Well, just before we head off into our weekend, your humble blogger thought it might be wise to inform you that the proposed regulations previously discussed here, are now in effect and have been adopted.

In other words, we are moving more and more to a truly paperless world. A fact that has certain employees of Dunder Mifflin inconsolable.

What do you think, dear readers, will you be receiving your QME reports via e-mail?

On another note, tonight is the start of Passover, so your humble blogger wishes his beloved readers a hearty Hag Sameach. Always eager to inform, I’m going to let you in on a little secret that is not widely known. There is actually an 11th plague that we endure every year, to this day:

Have a great weekend!

Happy Wednesday dear readers!

Your humble blogger has the kindest, smartest, most diligent readership of any blogger out there.  I was corrected by a reader who told me the proper greeting, when addressing a group of people rather than an individual, was not “howdy y’all” but “howdy all y’all.”  No doubt, this is akin to Usted/Ustedes in Spanish, viy/viy in Russian, Atah/Atem in Hebrew, and likely many more languages that I don’t have the pleasure of butchering with my attempts to speak.

Nevertheless, though corrected and humbled, your humble blogger is still here to bring you an updated regarding medical-legal evaluations.  Proposed changes to Rule 36.7 would make permanent electronic service of medical-legal reports (rather than allowing for this as emergency regulations). 

The regulation, as proposed, would allow any of the parties involved to agree to receive a QME report via electronic service by providing an e-mail address.  It further refines the regulation to place the burden of providing an updated e-mail address to the QME or AME on the party. 

The regulation continues to require a proof of service and maintaining of records, just as before.

Your humble blogger, for one, is in favor of this approach.  How many times have we been plagued by opposing counsel, trying to conceal lack of preparation and diligence by claiming that he or she never received a particular QME report.  Now we will have concise proof (not the presumption of delivery that comes with a proof of service) that the report was timely served and delivered.

If you are at all like your humble blogger, your own e-mail inbox is overflowing (about two weeks ago I managed to get down to 17 e-mails before looking away for a moment to have it fill right back up).  Sisyphus would be proud.  So perhaps law firms and insurers/employers should start designating a specific e-mail for receiving med-legal reports and make sure those e-mail addresses are diligently monitored and routed to the right desk?

Further, now that we will be able to conclusively show when a report was transmitted to the parties, the WCAB can be a bit more strict with requiring diligence to get these files moved along to resolution?

One can only hope, dear readers – one can only hope!

Straight on till Friday!

Happy Tuesday, dear readers!  Howdy Y’all!

Your humble blogger is back from his trip to Texas.  So, a few brief updates for you: the NRRDA conference was fantastic.  I highly recommend you attend in the years to come if you can make it.  Despite my best efforts to catch an armadillo, the clever little buggers would make me chase them up hill, then turn into a ball and roll back down until I was exhausted.  The bowling tournament will just have to wait.

Despite not catching an armadillo, I did manage to find something far more precious – some new friends, which is nothing to sneeze at.  After all, one of life’s greatest examples of tragic irony is that pirates spend their lives searching for treasure, never realizing that the real treasure is the friendships they form along the way.

Anywho, since we’re back in reality, let’s talk about a panel decision, shall we?  I bring to your attention, dear readers, the case of Munoz v. Cascade Drilling, recently issued by the WCAB.  This is on everyone’s favorite subject – panel disputes!  Applicant was examined by a QME in the orthopedic specialty for his claims of injury to the right wrist and right upper extremity.  The report was served on the parties on March 9, 2021.

But, just as the good doctor was dropping his report into the mail, applicant’s counsel was dropping an objection into his own mailbox, alleging that the report was not timely and demanding a replacement panel in the specialty in pain medicine.

The parties proceeded to trial on the issue and the WCJ ruled that applicant is entitled to a new panel, AND is entitled to change the panel specialty. 

Since your humble blogger has an overactive imagination, I like to think that at 6:00 a.m. on the 30^th day since the exam, applicant’s counsel’s alarm goes off, but he’s already awake. He rips the blanket off himself and is wearing already wearing a suit, clutching the objection letter in his hand.  “I’ve waiting 30 days for this moment” he thinks to himself, “it may as well have been 30 lifetimes.”  As he drops his objection letter into the mail, he roars “evaluate THIS!”

So, what happens, dear readers?  The QME is serving the report on the same day the applicant is serving his objection.  On the one hand, there is no way applicant’s counsel has seen the report at the time he sends his objection – so any concerns of objecting based on the contents of the report don’t apply.  On the other hand, Labor Code section 139.2(j)(1)(A) provides for 30 days after an exam to submit the initial report, and rule 38 requires that the objection me made prior to the date the evaluator served the report.

The WCAB took up the issue and found that the plain meaning of rule 38 is that an objection has to be made PRIOR to service of the report. So, if both the objection and the report are served on the same day, presumably the objection is late and the report stays in.

It seems to be taken as a given, however, and not commented upon by the WCAB, that a replacement panel due to a late report allows the objecting party to change the panel specialty.  In your humble blogger’s opinion, the proper approach is to issue a replacement panel in the same specialty.  What do you think dear readers?

And here’s another hypothetical question for you from your humble blogger.  The report in this case was served on March 9, 2021.  Since then, the WCAB has adopted rules requiring the parties to accept service by e-mail.  What happens if the report is served by e-mail on day 31 at 8:00 a.m., but one of the parties had scheduled an e-mail objection at 12:01 a.m. that morning objecting to the late report?  At that point, does the objection get “made” before service of the report, consistent with rule 38?  After all, the online panel request system is sensitive to the millisecond – the first electronic panel request after 5:00 p.m. on 16^th day wins.

Just something to think about in our brave new world, dear readers.  Till Wednesday…

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!

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?