Fundamentals of Work Comp Law - Part 6

Saturday, April 12, 2003 | 0

The following article is the fifth in a series for attorneys and other professionals just getting started in workers' compensation.

The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. The second article reviewed benefits for temporary and permanent disability. Article three reviewed death benefits, penalties and provided an overview of benefit rates.

The fourth part of the series started a review of WCAB procedures and the fifth article finished that review. This article goes over how medical issues are resolved.

Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from the annual class on workers' compensation they give to the CA State Bar Section Education Institute. 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.

XXI. 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):

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

2. Neither party is liable for any medical-legal reports other than from the treating physician prior to filing the DWC-1 and prior to denial or application of the presumption under Labor Code section 5402.

3. If medical examination is needed to determine compensability:

a) Represented injured worker: AME/QME; only one (1) medical-legal report.

b) Non-represented: QME panel; no AME (Labor Code section 4062.1).

c) Medical evaluations are to cover all medical issues.

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: AME/QME; only one (1) medical-legal report.

b) Non-represented: QME panel; no AME (Labor Code section 4062.1). If later becomes represented, attorney can select a new QME; defendants are given right for a second opinion. AB749

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.

3. Disability Evaluation Unit (DEU) to rate the report.

4. Apportionment issues under Labor Code replace 4663 and 4750 to be referred to a WCJ by the DEU for evaluation of the legality of the apportionment language.

5. No Declaration of Readiness to Proceed can be filed unless these has been a medical evaluation from the treating physician or an AME/QME. Any medical evaluations/reports in violation of this rule are not admissible.

6. Except for treating physicians' reports, reports obtained in violation of the requirements of Labor Code section 4061 are not admissible.

7. "Baseball Arbitration" (Labor Code section 4065): Repealed by AB 749.

D. Admitted cases - objection to the treating physician's opinion or any other medical issue not covered by Labor Code replace 4060 - 4061 (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: AME/QME; only one (1) medical-legal report.

b) Non-represented: QME panel; no AME (Labor Code section 4062.1). If later becomes represented, attorney can select a new QME; defendants are given right for a second opinion. AB749.

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.

2. No Declaration of Readiness to Proceed can be filed unless there has been a medical evaluation from the treating physician or an AME/QME. Any medical evaluations/reports in violation of this rule are not admissible.

3. Except for treating physicians' reports, reports obtained in violation of the requirements of Labor Code section 4062 are not admissible.

E. Information to be provided to AME (Labor Code section 4062.2):

F. Treating physician presumed correct (Labor Code replace 4062.9, 4068; Rule 9785): See Minniear v. San Antonio Community College Dist. (1996 en banc), 61 CCC 1055, for a complete discussion of the application of this presumption and what evidence may rebut it. The presumption of correctness of the treating physician does not apply when injury AOE/COE is in issue. See Vidal v. WCAB, (1997 W/D) 25 CWCR 212. Formerly under Rule 9785.5(b), the primary treating physician (PTP) was required to be "identified in a report" to the employer and to the employee or the employee's representative. If the treating doctor fails to make such "identification" in his/her reports, the presumption of correctness under Labor Code section 4062.9 may not be available. See Perez v. WCAB, 64 CCC 323, 339-344 (1999 unpublished). Effective 1/1/99, Rule 1985.5 was repealed and superceded by new/amended Rule 1985, which abolished the requirement of identification of the PTP in the reports.

G. For injuries occurring 1/1/2003 and after, the presumption of correctness of the treating doctor is limited to the injured's personal treating physician or chiropractor that had been predesignated prior to the date of injury under Labor Code section 4600. AB 749

H. Change of Treating Physician: Under Labor Code section 4600, the employer has the right to control medical treatment for the first 30 days after the injury unless the employee has designated in writing with the employer a treating physician prior to the injury. During the 30 days, the employee may request a change of treating physician from the employer pursuant to Labor Code section 4601. After 30 days, the employee may be treated by a physician of his/her own choice. For a discussion of the conflict between an injured's right to change treating physicians under Labor Code section 4600 and the restrictions of Rule 9785 (b), see Doolittle v. WCAB, 65 CCC 7 (2000 unpublished). See also Holland v. WCAB 66 CCC 1279 (2001 unpublished).

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

J. Subsequent examinations (Labor Code section 4067): Use same AME/QME.

XX. Findings and Award (Labor Code replace 5800 -5815; Rule 10780):

XXI. Attorney Fees: See Part III, infra.

The next article will take a look at administrative and appellate review.

Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support persons, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. 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.