California: You Better Be Ready to Lawyer Up!

California: You Better Be Ready to Lawyer Up!

Most people involved with California’s workers’ compensation system would say that over the past twenty years, the process has become increasingly litigious. There can be little question that the issues have become increasingly technical. The workers’ compensation practitioner now must contend with Utilization Review (UR) issues, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), not to mention the hyper technical arguments involved with the Panel Qualified Medical Evaluator (QME) process.

It just does not seem that things used to be this way. Somehow, somewhere, it seems the process has become lost. Issues that used to be easily resolved with a conversation and a handshake at the local district office of the Workers’ Compensation Appeals Board (WCAB) have now become matters necessitating trial time and almost guaranteed appellate proceedings.

That was precisely the case in Lecocq vs. Associated Feed & Supply Company, 2012 Cal. Wrk. Comp. P.D. LEXIS --. In Lecocq, the issue involved the selection of the specialty of the Panel QME. Defendant disputed applicant’s selection and filed a Declaration of Readiness to Proceed (DOR). At the Mandatory Settlement Conference set in response to defendant’s DOR, the Workers’ Compensation Judge (WCJ) issued a Findings and Order resolving the issue, over defendant’s objection. Defendant demanded a trial on the issue of which specialty is the proper specialty for the Panel QME and claimed that its due process rights and ability to create an evidentiary record would be violated if the WCJ ruled from the MSC calendar.

Defendant filed a Petition for Removal which was granted by a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB). In their decision, the commissioners first observed that contrary to defendant’s argument that only the Administrative Director or the parties are allowed to designate the specialty of the QME, California Code of Regulations, title 8, Section 31.1(c) provides that where the Medical Director does not issue a panel within 30 days, the WCJ may order the panel and designate the specialty of the panel. Moreover, the commissioners noted, “defendant requested a hearing before the WCJ on the issue of ‘which specialty is the proper one for PQME’ and should not be heard to complain when the WCJ made that determination”.

Then, in almost a 180 degree turn, the commissioners found that however correct the WCJ may have been in his ruling, Labor Code Section 5502(e)(2) and WCAB Rule 10353(a) preclude the WCJ from deciding the issue at the MSC over the objection of one of the parties. Section 5502(e)(2) essentially states that at the time of an MSC the WCJ shall have the authority to resolve disputes and “if the dispute cannot be resolved, to frame issues and stipulations for trial.”

Rule 10353(a) provides that at an MSC, the WCJ “may submit and decide the dispute(s) on the record pursuant to the agreement of the parties.”

Thus, the commissioners concluded, as there was “no agreement of the parties” to have the question of the appropriate specialty decided, the WCJ was wrong to have decided the issue. Moreover, the panel noted, there was no actual evidence admitted at the time of the conference which resulted in an inadequate record from which to base a decision in the case (citing Hamilton v. Lockheed Corporation (2001) 66 Cal. Comp. Cases 473 (appeals board en banc).

Thus, defendant will have their trial, a full record will be established and the matter will likely end back up on removal or reconsideration with the WCAB.

There can be no question that the selection of the appropriate specialty can be an important issue in a case, but a conference, a petition for removal, another conference, a trial, and likely appeals over the specialty of the physician evaluating the applicant? What are the likely defense costs going to be with this type of litigation? Does this make any economic sense?

It is exactly this type of litigiousness that has resulted in many WCJ’s refusing to decide many types of issues from the conference calendar, even where there is “agreement of the parties”. Matters have become so litigious there is virtually a guarantee that a petition for removal or reconsideration will be filed when any particular issue is decided. Why should the WCJ go to the trouble of creating an appropriate record at the time of a conference, so as to hopefully help the parties move a case along, if the parties are likely going to appeal and delay the matter anyways?

In conclusion, practitioners need to take a pragmatic approach to their cases and try to fairly resolve the issues. The point of this article, however, is to point out a potentially larger trend. The ramifications of that larger trend will not only impact the overall cost of the system, but also how accessible or even useful the system is for those participants that do not have lawyers.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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