Well, dear readers, defying all expectations, we made it to Friday!

A person who tunes into Fox News might be disappointed to know that the channel rarely, if ever, has news about foxes. 

The humble blogger takes a different approach, however, and WCDefenseCA is a defense blog.

So, then, why would your humble blogger’s post today be about a case where the defense arguments were defeated?  Why would he even agree with the WCAB in ruling in favor of applicant?

Well, besides the fact that the WCAB was 100% correct, the recent decision in the matter of Brar v. County of Fresno should serve to remind us all of the rules, so that we are not taken unawares by a diligent applicant attorney.

In Brar, while the claim was on delay, applicant wrote to defense counsel offering AMEs and asserting that “[a] comprehensive medical legal evaluation is necessary to determine compensability” and cited Labor Code section 4060 and 4062.2.  On the 16th day, applicant obtained a panel in pain medicine.

Defendant denied the claim about a few days later but objected to the panel because no dispute existed prior to the denial, and certainly not at the time of applicant’s letter.

So, who wins dear readers?  Is there a dispute such as to trigger the right to a panel when the claim has not been denied?

One could look at California Code of Regulations section 30(d)(1) (“after a claim form has been filed, the claims administrator, or if none the employer, may request a panel of [QMES] only as provided in Labor Code section 4060, to determine whether to accept or reject a claim…”) and take the position that only the defense could request a panel during the delay period (for AOE/COE determinations).  But one would be wrong.

Further, one could look at Labor Code section 4060 and compare subsection (c), which deals with represented injured workers, and subsection (d), which deals with unrepresented injured workers.  While the section for unrepresented injured workers provides “either party may request a comprehensive medical evaluation to determine compensability,” subsection (c), dealing with represented injured workers, only allows for a compensability panel to be obtained under Labor Code section 4062.2.

To harmonize section 30 of the regulation and Labor Code section 4060, one could conclude that while an unrepresented injured worker could request a panel to determine compensability during a delay period (4060(d) trumping 30(d)(1) in the case of unrepresented injured workers), a represented injured worker cannot request a panel under Labor Code section 4060 during the delay period.

However, in the Brar case, the WCAB panel cited Labor Code section 4062.2 which allows a request for a panel “at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060.”  The conclusion is, of course, that applicant’s counsel’s letter requesting a compensability exam during the delay period was “pursuant to section 4060.” 

So, what do we take from this?  When you get a letter from applicant’s counsel indicating the intent to request a panel you should be prepared to submit an online panel request.  It is not an effective tactic to assume that the underlying objection or letter will subsequently be found invalid – it very well might be.  But it is a lot easier to get a panel than to have it ruled invalid.

Represented panels are requested online, and whatever perceived defect in the triggering correspondence, you should be the one to get the panel first.

As much as your humble blogger would like to see a rule that limits obtaining a panel during the delay period to defendants and unrepresented claimants, I would expect significant resistance from the WCAB to such a proposal, and unless a party is willing to take this issue to the Court of Appeal, it might be a sounder strategy to just be the one who gets the panel!

Have a great weekend, dear readers!