Grinberg: Defendant, not Applicant, Has Duty to Provide RTW Form to QME

Tuesday, April 16, 2019 | 0

The workers’ comp system is a strange beast. So often we get interpretations of the law that are, well, unexpected.

Gregory Grinberg

Take, for example, a case recently reported on by Lexis, Fndkyan v. Opus One Labs.  Therein applicant demanded a supplemental job displacement benefits voucher from defendant, which defendant declined to produce because the qualified medical evaluator had not returned the physician’s return-to-work and voucher report form.

Defendant argued that as per Labor Code Section 4658.7(b)(1), the defendant has the right to offer regular, modified or alternative work up to “60 days after receipt by the claims administrator of the first report received from either the primary treating physician, an agreed medical evaluator or a qualified medical evaluator, in the form created by the administrative director.”

Defendant argued, of course, that if the QME did not provide the form, then the 60-day clock hadn’t started. At trial, the workers' compensation judge agreed, and applicant sought reconsideration.

On reconsideration, applicant argued that the burden shifts to the defendant to get the form filled out by the QME because the doctor had already advised the defendant that applicant was permanent and stationary, and had permanent work restrictions.

In reversing the WCJ, the panel relied on County of Kern v. T.C.E.F., for the proposal that “[t]o conclude otherwise would place form over substance.”

So, in other words, this panel held that if the QME advises defendant that applicant is permanent, stationary and has work restrictions, the defendant’s duty is now to get the form completed. Did you notice that the 60 days to make an offer or provide a voucher coincides neatly with the 60 days a QME has to issue a supplemental report? If the QME didn’t return the form the first time, and the employer asks for a supplemental, odds are it won’t be received in time to comply with the statute.

Labor Code Section 5705 clearly notes that the “burden of proof rests upon the party … holding the affirmative of the issue.” So if the applicant is claiming the affirmative of the right to a SJDB voucher, why isn’t the burden on the applicant to provide the form and see it filled out?

As to the form over substance, let’s think back to Labor Code Section 4658(d), which provided a 15% increase in permanent disability benefits if defendant failed to timely complete a notice of offer of regular, modified or alternative work form. How often did defendants get stuck paying the 15% increase because the offer was made verbally or via a letter (and not the form)? How often were defendants told, “you have to use the form”?

Remember how the fact that applicant had returned to work at full wages was irrelevant if the employer didn’t fill out the form in time?

And that is just another example of the frustration many employers and insurers have with the system as is. The difference in treatment and application of the law can give some employers the perception that the system really is rigged against them. Form over substance was acceptable when the benefits flowed to the applicant, but if form over substance yields any advantage, however minor, to the defendant, then it’s a problem.

Recall please, the context: All applicant had to do was submit the form to the QME and then get the completed return-to-work form to defendant. The effect of this panel decision is to penalize the defendant for not prosecuting applicant’s case.

What do you think? Where is the stopping point for shifting the burden onto defendants that a particular benefit is not due?

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.