Fundamentals of Work Comp Law and SB 899 - Part 5

Sunday, April 10, 2005 | 0

The following article is the fifth in a series for attorneys and other professionals just getting started in workers' compensation. Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from their annual class on workers' compensation they give to the CA State Bar Section Education Institute, updated to reflect the changes in the law from the recent reforms. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

PART 5

XX. Determination of Medical Issues:

A. Medical reports as evidence (Labor Code sections 4055, 4628; Rules 10606, 10608):

B. Injury AOE/COE in dispute (Labor Code section 4060)(amended by SB 899):

1. If injury to any part of the body is admitted, Labor Code section 4060 does not apply.

2. Neither party is liable for any medical-legal reports other than from the treating physician "except as provided in Labor Code section 4060." Labor Code section 4050(b)

3. If medical examination is needed to determine compensability at any time after the filing of a claim form:

a) Represented injured worker: Use the procedure provided in new Labor Code section 4062.2. Labor Code section 4060(c).

b) Non-represented: The employer to provide notice to the employee that either the employer requests or that the employee can request a comprehensive medical evaluation to determine compensability. The evaluation can only be obtained by using the procedure provided in new Labor Code section 4062.1. Labor Code section 4060(d).

c) Medical evaluations are to cover all medical issues arising from all injuries on one (1) or more claim forms filed prior to the date of the examination. Subsequent disputes to be resolved by same medical evaluator. Labor Code section 4062.3(i) & (j); Labor Code section 4067.

C. Admitted case - only PD and need for continuing medical treatment in issue (Labor Code section 4061):

1. Defined notice to accompany last TD payment.

2. If parties do not agree:

a) Represented injured worker: Use the procedure provided in new Labor Code section 4062.2. Labor Code section 4061(c).

b) Non-represented: The employer to provide the employee "the form prescribed by the medical director with which to assign a panel of three qualified medical evaluators." The evaluation can only be obtained by using the procedure provided in new Labor Code section 4062.1. Labor Code section 4061(d).

c) Medical evaluations are to cover all medical issues arising from all injuries on one (1) or more claim forms filed prior to the date of the examination. Subsequent disputes to be resolved by same medical evaluator. Labor Code section 4062.3(i) & (j); Labor Code section 4067.

3. The administrative director (probably through the Disability Evaluation Unit (DEU)) to rate the report.

4. Apportionment issues under Labor Code sections 4663 and 4664 to be referred to a WCJ by the administrative director for evaluation of the legality of the apportionment language. The WCJ is authorized to refer the report back to the medical evaluator for correction or clarification if the judge determines that the proposed apportionment is inconsistent with the law. Labor Code section 4061(f).

5. No Declaration of Readiness to Proceed can be filed unless these has been a medical evaluation from the treating physician or an agreed or qualified medical evaluator. Except for treating physicians reports, reports obtained in violation of the requirements of Labor Code section 4061 are not admissible. Labor Code section 4061(i)

D. Admitted cases - objection to the treating physicians opinion or any other medical issue not covered by Labor Code sections 4060 or 4061 and not subject to UR under Labor Code section 4610 (Labor Code section 4062):

1. Written objection must be sent within 20 days of receipt of the report if represented, or 30 days of receipt if not represented, specifying the basis for the objection. The dispute must then be resolved by:

a) Represented injured worker: Use the procedure provided in new Labor Code section 4062.2. Labor Code section 4062(a).

b) Non-represented: The employer to provide the employee "the form prescribed by the medical director with which to assign a panel of three qualified medical evaluators." The evaluation can only be obtained by using the procedure provided in new Labor Code section 4062.1. Labor Code section 4062(a).

c) Employer objecting to the treating physicians recommendation for spinal surgery shall follow the procedure of Labor Code section 4062(b).

d) If the employee objects to a decision made pursuant to Section 4610 to modify, delay, or deny a treatment recommendation, the employee shall notify the employer of the objection in writing within 20 days of receipt of that decision. Labor Code section 4062(a).

E. Non-represented employee medical evaluation procedures under new Labor Code 4062.1:

1. Agree medical evaluations are not permitted. If either party requests a medical evaluation pursuant to Section 4060, 4061, or 4062, either party may submit the prescribed form requesting the assignment of a panel of three qualified medical evaluators. The employer must give the employee 10 days to submit before the employer can submit the request. The requesting party can designate the specialty of the physicians assigned to the panel. Labor Code section 4062.1(b)

2. Within 10 days of the issuance of the panel of three qualified medical evaluators, the employee shall select a physician, make the appointment and notify the employer of the selection and appointment. If the employee fails to notify the employer in said 10 days of the selection, the employer may select the physician. If the employee notifies the employer of the selection but neglects to make the appointment, the employer shall make the appointment. The employer shall advance estimated travel expense moneys. Labor Code section 4062.1(c).

3. The employee shall participate in the evaluation unless the employee has good cause to discontinue as defined. The unrepresented employee has the right to a new panel of three qualified medical evaluators but if the appeals board subsequently determines that no good cause existed, then the cost of the evaluation shall be deducted from any award the employee obtains. Labor Code section 4062.1(d)

4. If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to another evaluation, Labor Code section 4062.1(e)

F. Represented employee medical evaluation procedures under new Labor Code 4062.2:

1. Labor Code section 4062.2 was repealed and replaced with a new section that is only applicable to disputes where the date of injury is on or after 1/1/05. Labor Code section 4062.2(a). Note: This leaves a large gap in the law as there is now no authorized procedure for the AME/QME dance for cases arising before 1/1/05.

2. The parties shall attempt to reach an agreement as to the evaluator. If no agreement is reached within 10 days of the first written proposal, or additional time not to exceed 20 days agreed to by the parties, either party may request the assignment of a panel of three qualified medical evaluators. Labor Code section 4062.2(b)

3. Within 10 days of the assignment of the panel by the administrative director, the parties shall confer and attempt to agree on an agreed medical examiner selected from the panel. If no agreement is reached by the 10th day after the assignment of the panel, each party may strike one name form the panel. If a party fails to exercise the right to strike a name form the panel within three working days of gaining the right to do so, the other party may select any physician who remains on the panel to serve as the medical evaluator. Labor Code section 4062.2(c)

4. The represented employee shall be responsible for arranging the appointment for the examination, but upon his or her failure to inform the employer of the appointment within 10 days after the medical evaluator has been selected, the employer may arrange the appointment and notify the employee of the arrangements. Labor Code section 4062.2(d)

5. If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later ceases to be represented, he or she shall not be entitled to an additional evaluation, Labor Code section 4062.2(e)

G. Information to be provided to a medical evaluator (Labor Code section 4062.3):

1. To a qualified medical evaluator selected from a panel:

a. Treating physician records and reports;

b. Medical and non-medical records relevant to the determination of the medical issue

c. All proposed records shall be served on the opposing party 20 days before the information is provided the medical evaluator. If the opposing party objects to non-medical records with 10 days after service, such records shall not be provided to the medical evaluator. Labor Code section 4062.3(b)

2. If an AME is used, the parties shall agree on what information is to be provided to the medical evaluator.

3. In any formal medical evaluation, the medical evaluator shall identify all information received from the parties, all information reviewed in the preparation of the report and all information relied upon in formulating the opinion.

4. All communications with an AME or panel QME shall be in writing and served on the opposing party 20 days before the evaluation. Subsequent communications to the evaluator shall be in writing and served on the opposing party when sent to the evaluator. Ex parte communication are prohibited. Labor Code sections 4062.3(e) & (f)

H. Report of the medical evaluator (Labor Code section 4062.3): Upon completing a determination of the disputed medical issue, the medical evaluator shall summarize the medical findings on a form prescribed by the administrative director and shall serve the formal medical evaluation and the summary form on the employee and the employer. The medical evaluation shall address all contested medical issues arising from all injuries report on one or more claim forms prior to the date of the employees initial appointment with the medical evaluator. Labor Code section 4062.3(i)

I. Treating physician presumed correct - Abolished by SB 899 effective 4/19/04 by the repeal of Labor Code section 4062.9

J. Change of Treating Physician: Substantially modified by SB 899 and the adoption of Medical Provider Networks. See infra pp. 7-8

K. Employer liable for reasonable medical-legal costs (Labor Code sections 4064, 4620-4628):

L. Subsequent examinations (Labor Code section 4067; Labor Code section 4062.3(j)): Use same agreed or qualified evaluator

The next article in this series will review miscellaneous issues.

Richard D. Owen is a Sr. Staff Counsel, Supervisor, with State Compensation Insurance Fund; he is the Attorney-in-Charge for Glendale Legal's Unit A, comprised of 16 litigation attorneys and 14 clerical support, and participates in training/educating attorneys and claims adjusters for SCIF in throughout California. He has been a certified workers' compensation law specialist since 1992 He can be reached at rdowen@scif.com. Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.

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