Cortez and Simi Again

Saturday, February 11, 2006 | 0

The Court of Appeals has issued a decision that is a companion to a case reported the day before in Nunez v WCAB. The Court, in an opinion which relies heavily on its own decision in Nunez, has affirmed a WCAB order compelling applicant to appear for a medical legal examination under the former Labor Code Section 4062 where the exam was scheduled after the revisions to that section in SB 899.

In Cortez v WCAB, the court held, similarly to Nunez, that the changes in SB 899 to the medical legal process in SB 899 do not bar defendants (and by inference applicants also) from obtaining medical legal examinations to assess the injured worker's condition despite the lack of applicable statutory authority.

The court did also make a point that a defendant does not have the ability to substitute an examination under Labor Code Section 4050 [1] or 5701 [2] for the formal medical legal process:

"...For the reasons we stated in Nunez, section 4050 may not be utilized to circumvent the medical evaluation and reporting procedure of former section 4062.

"For the same reasons, section 5701 should not be utilized to order a medical evaluation that appears to violate former section 4062 and may generate an inadmissible report at trial. [3] Absent additional documentation that indicates compliance with the applicable statute, the order could result in undermining the Legislature's goal of avoiding unnecessary and costly medical evaluations and reports, and may be an abuse of discretion."

The holding in this case is complimentary to and supported by the ruling in Nunez and given the language in Nunez should certainly not be a surprise. The court's language regarding using Labor Code Section 4050 or 5701 to get around or avoid the otherwise applicable statutory procedures for medical legal examinations should serve as a caution to efforts to get around the new procedures for injuries after 1/1/05 also.

There are widespread reports of both applicant attorneys and defendant's ignoring the new procedures under Labor Code Section 4062.2 and simply scheduling medical legal examinations. Some of this can certainly be blamed on lack of familiarity with the newer medical legal procedures. This case, and also Nunez suggest that such examinations will not be considered admissible. If not admissible, defendants will not have to pay for reports obtained by applicant attorney (obviously they will have to pay for their own mistaken reports with the penalty of having to pay for an admissible report down the line.)



---------footnotnes--------

[1] Labor Code Section 4050 reads as follows: "Whenever the right of compensation under this division exists in favor of an employee, he shall, upon the written request of his employer, submit at reasonable intervals to examination by a practicing physician, provided and paid for by the employer, and shall likewise submit to examination at reasonable intervals by any physician selected by the administrative director or appeals board or referee thereof"
[2] Labor Code Section 5701 reads as follows: "The appeals board may also from time to time direct any employee claiming compensation to be examined by a regular physician. The testimony so taken and the results of any inspection or examination shall be reported to the appeals board for its consideration."
[3] Former Section 4062, subdivision (a) requires a written objection within 20 days of receipt of the physician's medical report. The employer's letter (dated May 14, 2004) indicates their objection was made approximately a year after the report (dated May 9, 2003) by Dr. Mays. A violation of section 4062 may render the report inadmissible. (Tenet/Centinela Hospital Medical Center v. Workers' Comp. Appeals Bd), (2000) 80 Cal.App.4th 1041 (failure to follow Section 4061 or 4062 invalidated change of treating physician and report); County of Santa Barbara v. Workers' Comp. Appeals Bd.<.i> (1999) 64 Cal.Comp.Cases 907 (medical report inadmissible for failure to timely object under Section 4061 or Section 4062); see also San Diego Gas & Elec. v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 384.)


By Jake Jacobsmeyer. Jake is the Managing Partner of the East Bay Office (Concord, Ca.) of the law firm of Adelson, Testan, Brundo & Popalardo. He can be reached at 925 609-1990, or by e-mail at richardjacobsmeyer@atblaw.net.

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