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QRRs, Formal Conferences and Case Law Update

Saturday, October 23, 2004 | 295 | 0 | min read

In the following article, rehabilitation/return-to-work expert, Allan Leno, counsels fellow professionals to ensure attendance at Formal Conferences, and does a review of couple of important recent cases.

by Allan Leno

QRRs and Formal Conferences I attend several formal conferences each week and have noticed in certain venues that vocational counselors regularly fail to appear, even though they were provided notice by the RU Consultant. Consultants in these venues have indicated that it is the exception, rather than the rule, when a Qualified Rehabilitation Representative (QRR) does appear for the conference.

This failure to appear is of little consequence where the issues do not involve the counselor. However, in many cases the counselor's input is critical to the outcome and his or her failure to appear could mean substantial cost to the carrier or a loss of benefits and services to an injured worker.

This was the situation when a QRR failed to appear at a recent conference in Santa Monica. The Rehabilitation Unit (RU) Consultant was furious with the QRR and was prepared to order a significant extension in benefits and services for the injured employee because the counselor was not present to substantiate his efforts on behalf of the injured employee. The parties were able to resolve the matter without an Order from the Unit.

However, if the Unit had issued the expected Order, my advice to the carrier would have been file a complaint with CARRP and to sue the QRR and the firm for whom he worked. The reason for the suit - if the QRR had appeared and testified consistent with his reports, there is a good chance the case would have been closed at no additional expense to the carrier.

A good reputation is hard to earn - but very easy to lose. When a QRR is served with a conference notice but the issues do not involve the counselor, it is entirely appropriate to ask the parties to be released from attending. In all other cases, professionalism and ethical conduct require the QRR to be present to explain his or her view regarding the issues in dispute. A counselor's failure to appear for a formal conference tends (unfairly) to reflect poorly on our piece of the industry.

The counselor in the situation above has lost the respect of the RU Consultant and both he can expect to receive no further referrals from the carrier, which may also be the case for his employer. I realize that this sounds like a lecture - but I know too may people in this industry who have worked very hard for many years to build and maintain solid reputations. We owe it to them, as well as ourselves, to meet our obligations and to conduct ourselves as professionals.

Case Law Updates Are FEHA issues resolved when a C&R settles "....all claims and causes of action" related to the industrial injury?

In Mary J. Jefferson v. California Dept. of Youth Authority (2002) 67 CCC 727, No. S097104 (CA Supreme Court), the Supreme Court determined that an FEHA claim was settled when the employee signed a stock C&R form containing language that resolved all causes of action related to the applicant's worker's compensation claim. A recent District Court of Appeal (2nd) came to a different conclusion with a similar but slightly different set of facts.

In Dorothy Wimberly Mitchell, The Union Central Life Insurance Co. et al (2004) 69 CCC 586 (reversed and remanded with directions), the 2nd DCA found that a C&R with the "...all causes of action" language did not resolve an FEHA claim where there was no evidence of intent by the applicant to settle the FEHA claim. The Court found evidence that the applicant did not intend to settle her case because she had a second attorney for her FEHA claim, the FEHA action was not mentioned in the C&R, the WCALJ and both attorneys conceded that the FEHA claim was not discussed during settlement, the employer had a $1 million offer on the table at the time of settlement, and the employer offered to settle the FEHA case for $1.1 million after the C&R. Since the workers' comp case was settled for $57,500, the DCA was convinced that there was no intent on the part of the employee to include her FEHA claim.

In the Jefferson case, the employee had filed an FEHA claim but there had been no discussion of settlement and the Court believed the applicant was aware that "...all claims and causes of action" would include her FEHA claim. In some respects, this seems like a very fine distinction from the Mitchell case. It will be interesting to see if Mitchell is appealed to the Supreme Court for further clarification. [The facts suggest that this would be a poor case for the employer to appeal.]

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.

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