The Labor Code Section 4601(i) 'Problem'

Tuesday, February 19, 2013 | 0

Another issue raised by SB 863 is whether Labor Code §4061(i) will limit the ability of parties to expeditiously resolve cases when there is no report from a PTP and the applicant has not been examined by an agreed medical evaluator or qualified medical evaluator. Labor Code §4061(i) states that:

No issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator. 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.

This section has been read by some to indicate that a declaration of readiness (DOR) cannot be filed unless there is a permanent and stationary report by the primary treating physician and a comprehensive medical-legal evaluation. If this is indeed the case, this section will prove to be very problematic in resolving workers’ compensation claims, as many PTPs will not issue permanent and stationary reports and defer the issue to an AME or QME.

The first and most important issue is that there is nothing in the statute that mandates that there be a permanent and stationary report from the PTP. The statute merely refers to a “medical evaluation” and does not expressly state that the treating physician must comment on the issue of permanent impairment.

However, the problem with the statute is that it appears to be a prohibition on settling the case on the treating physician’s reports. If that is the case then this statute will likely result in significant delays in the resolution of claims, as every case would require an AME or QME. A careful reading of 4061(i) indicates that this may not be the case.

Specifically, the statute states that “no issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed. . .” As such, if there is an issue of injury AOE/COE or any other issue that may be the subject of a DOR, then it does not appear that a report from a PTP and an AME/QME is necessary. There appears to be a prohibition against filing a DOR on the issue of PD without the existence of an AME or QME report. This does not necessarily mean that you cannot settle a case based on the report of the PTP.

If that was the case, then the statute would be internally inconsistent, because the statute goes on to say that “with the exception of an evaluation. . . by the treating physician. . . no evaluation or permanent impairment. . . 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.”

This refers to the medical-legal procedure, but the plain language of the statute clearly states that the treating physician’s report is admissible on the issue of permanent disability. However, beyond those of the treating physician, any other reports on the issue of PD must be obtained in accordance with the medical-legal procedures to be admissible.

Therefore, the statute appears to address issues relating to the filing of a DOR and the admissibility of reports on the issue of PD. As with many issues raised by SB 863, this will likely be something for the Board to address in the near future. However, although this statute raises significant potential issues, I believe that this reading of the statute provides a potential framework for continuing to move forward in an expeditious manner.

Jerry Rempel is an attorney in the Chico office of Grancell, Lebovitz, Stander, Reubens and Thomas. This column was reprinted with his permission from the firm's Quarterly Review newsletter.