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?

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?