Nunez and Simi Again

Saturday, February 11, 2006 | 0

The Second District Court of Appeals has finally issued its decision in Nunez v WCAB, where the applicant attorney had challenged the WCAB's holding in Simi v Sav-Max Foods on the ability of a defendant to obtain a medical legal evaluation using the process in effect prior to SB 899. (A companion case was also granted hearing at the same time, Cortez v WCAB. See sidebar at right for the case and article.)

This case addresses the so called "black hole" for medical legal examinations in represented cases post SB 899. The new statutory scheme for obtaining medical legal reports that resulted from the revisions to Labor Code Section 4060 to 4062.2 had left a gap for cases between 4/19/04 (the effective date of SB 899) and injuries on or after 1/1/05. The new statutory language did not cover such claims and there had been considerable discussion and speculation about the legal consequences of the legislative oversight.

The WCAB had addressed the issue in a very pragmatic manner in the Simi en banc decision which issued in February of 2005. In that decision the WCAB ruled that in represented cases the parties were to proceed under the prior provisions of the statutory scheme, the traditional AME/QME dance two step. For most of the applicant and defense bar this was a perfectly rational and acceptable approach until the claims after 1/1/05 required use of the new AME/QME panel process for selection of medical-legal examiners.

The same applicant attorney's firm represented the applicants in Nunez and Cortez and took the position the defendants were not entitled to any medical legal examination in the absence of statutory authority and challenged the WCAB's holding in Simi. Alternatively the argument was made that the new procedures set out in Labor Code Section 4062.2 were to be followed rather than allowing the defendant to select their own medical legal examiner after the AME dance had been unsuccessfully performed. The court of appeals granted the Petitions for Writ of Review in both cases and the cases were argued on the same date in November of 2004. In published decisions the Court has upheld the WCAB's holding in Simi in full ruling that the pre-SB 899 medical-legal process applies to such cases.

The Court noted in its opening comments on the case:

"...We are led to that position by the illogic of allowing a vacuum in which the employer would have no right to have a medical evaluation performed, the plain language of the new statute which confines its application in represented cases to injuries occurring after 2004, and by deference to the Board, a constitutional agency, which is charged with construction and application of workers' compensation law and administration of the workers' compensation system."

Applicant also argued that the new provisions enacted with SB 899 required use of the new 4062.2 process for obtaining examinations in represented cases. The court however noted the specific language in 4062.2 that limited the application of the section to cases arising after 1/1/05 only.[i] The Court noted this section was clearly inapplicable and then approved the WCAB's use of the former statute in this circumstance:

"...The Board's reasoning in applying former section 4062 in Simi, and extending its reasoning to this case, is sound. The Legislature did not intend total deregulation of the abuses historically associated with medical evaluation and reporting in workers' compensation. Moreover, the statutory scheme should not be interpreted so that either side is arbitrarily deprived of the right to medical evaluation or reporting."

Most applicant and defense attorneys had been operating as if the holding in this case was the law even before the Simi decision was issued. After Simi only a very few applicant attorneys argued against the holding and instructed their clients to not attend medical examinations. This case therefore drew very little interest from either side of the bar. There were no amicus briefs from either the applicant or employer/insurer organizations and one certainly suspects that even most of the fellow applicant attorneys were relieved at the eventual outcome.

While it is possible that this case might be taken up to the next level (California Supreme Court), the issue does not appear to be the kind that the court is likely to accept. Many of the cases that might have been affected by a different result in this case are already either resolved or have gone through the medical-legal process in reliance upon the holding in Simi.

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[i] An additional argument raised by applicant was the use of the incorrect section (Labor Code Section 4060) relied upon by the WCJ, when in reality the applicable sections were 4061 & 4061. The court noted that given their holding, the use of the wrong code section in the original court order was irrelevant as the result would be the same.

By Jake Jacobsmeyer. Jake is the Managing Partner of the East Bay Office (Concord, Ca.) of the law firm of Adelson, Testan, Brundo & Popalardo. He can be reached at 925 609-1990, or by e-mail at richardjacobsmeyer@atblaw.net.

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