Summer Barbecue

Tuesday, June 29, 2010 | 0

By Mullen & Filippi

Welcome to summer. It’s time to get out the barbecue and enjoy the warm weather. And when we are at work, we can enjoy some helpful new decisions by the Workers' Compensation Appeals Board.

Any Party, Any Time. On June 3, the WCAB issued an en banc decision in the case Mendoza v. Huntington Hospital, invalidating Rule 30(d)(3), which prohibited defendants from requesting a qualified medical evaluator panel on the issue of compensability after denying a claim. The WCAB held that the rule conflicted with applicable statutes which provide that any party can request a panel on the issue of compensability at any time.

Rule 30(d)(3) provides that whenever a claim has been denied by the defendant, “only the employee” may request a QME panel. The Board held that the rule is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 which provide that "either party" may request a QME panel "at any time" after a claim form is filed. The Board also found that Rule 30(d)(3) exceeds the scope of Labor Code section 5402(b) because it effectively requires a defendant to obtain a QME report on compensability within the initial 90 day investigation period, which is not required by Section 5402(b). Section 5402(b) only requires that a defendant exercise reasonable diligence to investigate a claim within the first 90 days, which does not include a requirement that the defendant obtain a QME opinion within that time or lose the right to do so later.

As the Board pointed out, the applicant has the burden to establish industrial causation, and a defendant may deny a claim within the first 90 days when the applicant has failed to produce any substantial medical evidence to support causation. Requiring the defendant to initiate the QME process before denying the claim, or go through "the rather lengthy process" of obtaining an order directing the medical director to issue a panel, imposes a burden on defendants which is inconsistent with the statutes, and can significantly delay resolution of the claim.

This decision does not extend the initial 90 days within which a defendant is required to make a decision on whether to deny a claim. It also does not eliminate the requirement that a defendant diligently investigate the claim before denying it. But where the defendant has denied the claim, the defendant now has the same right as the applicant to obtain a QME evaluation on the issue of compensability.

Dividing the Workload.  At a barbecue, it works best when one person grills the meat and others do other tasks, like preparing the marinade and serving the guests. Recognizing that things go more smoothly when everyone knows their role, the WCAB issued another en banc decision on June 3, explaining the roles of the evaluating doctor, the WCJ and the Disability Evaluation Unit rater in calculating a permanent disability rating.

In the case, Blackledge v. Bank of America, the agreed medical evaluator (AME) found 8% whole person impairment to the lumbar spine, and 2% whole person impairment to the lower extremities based on his interpretation of the American Medical Association Guides. After trial, the workers' compensation judge (WCJ) issued rating instructions which essentially just told the rater to rate the AME report. The rater, based on his own interpretation of the AME report, found no ratable impairment under the AMA Guides, and issued a zero rating. After receiving this rating, the WCJ issued Findings and Award finding 10% permanent disability. The defendant sought reconsideration.

On reconsideration, the Board decided it was necessary to issue an en banc opinion to clarify the respective roles of the doctor, the judge and the rater. The Board held that the doctor's role is to assess the injured worker's impairment percentages by a report that includes facts and reasoning to support its conclusions and comports with the AMA Guides and case law (at present Almaraz/Guzman). The judge's role is to frame instructions for the rater based on substantial evidence that fully describe the whole person impairment to be rated. The rater's role is to issue a recommended rating based solely on the judge's rating instructions. The WCJ's instructions to the rater may ask for an expert opinion on what whole person impairments should be rated. However, unless asked to do so by the WCJ, the rater does not have authority to issue a rating based on the rater's assessment of whether the whole person impairments referred to in the instructions are based on substantial evidence or are consistent with the AMA Guides.

The Board also held that the WCJ is not bound by the rating received from the rater, and may independently rate the permanent disability. However, the WCJ's rating still must be based on substantial evidence. In addition, in the context of a formal rating, all communications between the WCJ and the rater must be disclosed to the parties.

Finally, the Board held, "potential AMA Guides rating problems may be minimized by the early and proper use of non-formal ratings". In other words, it is best to try to work this out before you get to trial.

While the evaluating doctor and the rater have their roles, this decision affirms that it is the WCJ who ultimately has the responsibility for determining the permanent disability rating. The responsibilities of the doctor and the rater are to provide the support the WCJ needs to make sure the rating is based on substantial evidence, and is correctly calculated.

Mullen & Filippi is a workers' compensation defense firm with offices in 11 locations throughout California. This column was reprinted with permission from the firm's client newsletter.