Common Adjusting Mistakes, Part 2: LC 4050

Sunday, September 14, 2003 | 0

This is the second in a series on common mistakes made by claims examiners in the workers' compensation field. Our last article reviewed failure to adjust the TTD level after two years post injury. In this article we will look at the improper use of Labor Code section 4050 evaluations.

The Improper Use Of Labor Code Section 4050

Labor Code section 4050 is a simply worded section:

"Whenever the right to compensation under this division exists in favor of an employee, he shall, upon the written request of his employer, submit at reasonable intervals to examination by a practicing physician, provided and paid for by the employer, and shall likewise submit to examination at reasonable intervals by any physician selected by the administrative director or appeals board or referee thereof."

The problem with this simple section is that it too often is used to combat the treating physician's report, however a 4050 examination is NOT a Qualified Medical Examination (QME).

A QME is provided for in Labor Code sections 4061 and 4062. Both of those sections specifically require that written objection first be made to a treating physician's opinion before an attempt can be made to obtain an independent, admissible, medical report.

As the primary treating physician's presumption under 4062.9 continues to get chipped away at, through recent legislation, this fine distinction will become less important over the years. However, for injuries prior to 1/01/04 ensuring the admissible status of medical legal reports requires written objection to the treating physician report prior to obtaining an independent medical-legal evaluation.