WCAB Upholds Order Disallowing Medical Exam Under Section 4064(d)

Saturday, October 7, 2006 | 0

By Jake Jacobsmeyer

The WCAB issued a "Significant Panel Decision[1]" addressing the use of Labor Code Section 4064(d) as means to evade the mandatory language in Labor Code Sections 4060 & 4062.2 to obtain an admissible medical legal report. The board concluded that the language in Labor Code Section 4064(d) is superseded by the more recently adopted provisions of Labor Code Sections 4060 and 4062.2 (and presumably 4061 & 4062) and upheld an order of the Trial WCJ that denied defendant's Petition to Compel Attendance at a Medical Legal examination.

In Ward v. City of Desert Hot Springs/Hazelrigg Risk Management Services, the applicant filed a claim for cumulative trauma to the psyche and internal organs. The defendant arranged for an examination to investigate the claim (which had been denied). Counsel for applicant refused to allow his client to attend the examination contending that Labor Code Sections 4060 and 4062.2 provided the exclusive procedure for obtaining a medical legal examination. The defendant then filed a Petition to Compel attendance at the exam.

The WCJ denied defendant's petition holding that Labor Code Section 4060 governed the process for obtaining such examinations and that 4064(d) did not apply. The defendant appealed and the WCAB upheld the trial judge's decision.

The board noted that there appeared to be an irreconcilable conflict between Labor Code Section 4064(d) and the more recently enacted provisions involving medical legal exams. The conflict arises because of the permissive language in Labor Code Section 4064(d) and the mandatory and nonpermissive language in the other two sections.

Labor Code Section 4060, as amended by Senate Bill 899, provides:

"If a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2."

In turn, section 4062.2(a), as adopted by SB 899 provides as follows:

"Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after Jan. 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section."

The board noted that the language in both of these sections was mandatory, not permissive. Since there was a conflict in the statutory language, the later enacted statute is the one which is given priority:

"...Thus, if there is an irreconcilable conflict between section 4064(d), on the one hand, and sections 4060 and 4062.2, on the other, then the latter statutes prevail as the more recently amended and enacted."

While the court did not express an opinion on the same issue where Labor Code Section 4061 and or 4062 might be involved, the language of the decision leaves little doubt how that issue would be resolved. Both Labor Code Sections 4061 and 4061 refer to Labor Code Section 4062.2 as the procedure for obtaining a medical legal examination and the 4062.2 language is just as mandatory in its application to exams obtained to address the issues in Labor Code Section 4061 (PD only) or 4062 (any other medical issue). The language in Labor Code Section 4062 mirrors 4060, 4061 has slightly different language which nonetheless appears to be equally direct in its intent:

"...With the exception of an evaluation or evaluations prepared by the treating physician or physicians, no evaluation of permanent impairment and limitations resulting from the injury shall be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be admissible in any proceeding before the appeals board."

Given the language of the companion sections to Labor Code Section 4060, there is little reason to anticipate any different result just because the issue was not specifically addressed by this decision.

A copy of this case can be located by double clicking on the name to the right.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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