Using the Harvest

Wednesday, October 12, 2011 | 0

All those who live in or near California’s wine growing regions know that this is the time of year for harvesting the grapes that eventually become California’s world-renowned wines. Those who have some familiarity with the process also know that growing and picking the grapes is only the first step in making wine. It’s what you do with the grapes that makes the difference. Just so, when the Workers' Compensation Appeals Board hands down judicial decisions, knowing the rules is only the first step. The real trick is figuring out how to use them.

Solidifying Your Position. We reported a few months ago on the WCAB’s April 20 en banc decision in Valdez v. Warehouse Demo Services, in which the Board held that reports arising from unauthorized treatment obtained outside a medical provider network are not admissible. The Board then granted reconsideration to rethink its decision. On Sept. 27, the Board issued a new en banc decision, affirming its prior holding.

In the petition for reconsideration which led to the new decision, the applicant’s attorney made many arguments that the Board found unpersuasive. After explaining why the applicant’s arguments did not have merit, the Board succinctly explained its ruling as follows:  “. . . non-MPN treatment reports are inadmissible where unauthorized treatment has been obtained outside a validly established and properly noticed MPN because the non-MPN doctor is not the PTP.”  As further explained by the Board, where there is a validly established and properly noticed MPN, only a doctor in the MPN can be the treating physician. An applicant cannot have more than one treating physician at a time. Since a non-MPN doctor cannot be the treating physician, the reports of the non-MPN doctor are not admissible. 

As far as how we use the Valdez decision, the first step is to make sure that your MPN is “validly established and properly noticed.” Assuming your MPN meets the requirements, it is important to be vigilant in objecting to non-MPN reports you become aware of, and also be vigilant in keeping those reports away from any AME or QME who might be inclined to rely on them if brought to the AME or QME’s attention. If you have questions about whether your MPN meets the standard, or how to deal with non-MPN reports you receive, we invite you to contact your favorite Mullen & Filippi attorney for assistance.

The Importance of Timing.  In another recent en banc decision, Messele v. Pitco Foods, in which both sides ultimately lost, the Board explained the rules for when a party may request a qualified medical evaluator panel in a represented case after one side proposes an agreed medical evaluator. In this case, the mistake both parties made was acting too soon.

Where the applicant is represented by counsel, Labor Code Section 4062.2(b) requires that the parties take 10 days to try to agree on an AME before either side can request a QME panel. A civil litigation rule, Code of Civil Procedure Section 1013, provides that where service is by mail, five days are added to the deadline for responding to a served document. The question in Messele was whether Section 1013 applies to extend the period before which a party can request a QME panel by those five days when the AME proposal is sent by mail. Ultimately, the Board held that Section 1013 does not apply directly, but an equivalent Board rule, found at 8 CCR Section 10507(a)(1), does.

Messele involved a hand injury claim. The defendant served an AME proposal by mail on April 20. On May 1, the 11th day after the AME proposal was sent, applicant’s attorney submitted a request for a pain management panel.  On May 4, defendant submitted a request for a hand specialist panel. The DWC received applicant’s request on May 5 and issued the pain medicine panel. The DWC received defendant’s request on May 10 and issued a hand specialist panel. Defendant then objected that the pain management panel was invalid because the AME request had been served by mail, and therefore the deadline before which a panel could be requested was extended by five days. Defendant argued that its panel was valid because the DWC received its request on May 10 (20 days after the date of the AME proposal), which is more than 15 days after the AME offer. The Board held that where the AME proposal is served by means other than hand delivery, a panel cannot be requested until after the 15th day after the date of the proposal. Based on this rule, the Board found that both panel requests were invalid. The Board agreed that applicant’s request, sent 11 days after the AME proposal was served, was too early.  The defendant’s request, sent 14 days after service of the AME proposal, was also too early. The Board explained that it is the date the panel request is served, not the date the DWC receives it, that controls. The Board did not explain what the parties should do next.

As we all know, it is often the case that, when the parties cannot agree on an AME, they also cannot agree on the appropriate medical specialty from which to select a QME panel. In an effort to ensure that the panel is chosen from the desired specialty, each side tries to be the first one to request the panel. However, where the panel request is sent too soon, and the other party objects, the panel may be deemed invalid. AME proposals are required to be in writing. Based on Messele, unless the AME letter is hand delivered, the earliest day to request a panel is the 16th day after an AME letter has been served. The Board pointed out in a footnote that the easiest way to establish the date of service is to make sure your AME proposal is accompanied by a proof of service. To make sure we get the result we want, we all need to be very aware of the timing of these events. If you have a question about how this applies to a particular case, we invite you to contact your favorite Mullen & Filippi attorney for advice.

Seeking Clarity. In last month’s Bulletin, we reported on the Baker case which explained how the cost of living adjustment is applied in life pension and total permanent disability cases. In response to that article, a reader asked about how the COLA applies in death benefit cases where, like total permanent disability, benefits are paid out at the total temporary disability rate.

On Sept. 6, a Board panel issued a decision which addresses that question, Munson v. City of Los Angeles Police Department. In this case, a police officer died of breast cancer, leaving behind a disabled adult son. Industrial injury was stipulated, and the son became statutorily entitled to death benefits for life at the temporary disability rate. At issue was the amount of the applicant’s attorney’s fee. He claimed he should receive a fee based on the present value of the total anticipated lifetime death benefit, including COLA increases. The WCJ disagreed, finding that the COLA only applies to total permanent disability and life pension benefits. The WCAB panel found that a COLA does apply to death benefit payments under Labor Code section 4453(a)(10). However, death benefits are capped at two-thirds of the deceased employee’s average weekly wage, based on Labor Code section 4653. As a result, the panel held, although there could be COLA adjustments to the death benefit rate, the surviving child could not receive more than two-thirds of the decedent’s actual weekly wages. As we understand this panel decision, the COLA only applies to death benefit payments when the decedent’s actual wages were high enough that the maximum temporary disability rate is less than two-thirds of the actual wages, and only applies to increase the rate until the death benefit rate reaches two-thirds of actual wages.  

This is only a panel decision, and the panel’s opinion on how the COLA is applied in death benefit cases was not the central issue. Nonetheless, since this is the only case we have seen where this issue was addressed, we bring it to your attention.

Mullen & Filippi is a workers' compensation defense firm with 12 offices in California. This column was reprinted with the firm's permission from its quarterly client newsletter.