CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
From the limited information in the record in Hasley v. Frito-Lay, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS --, it appears that applicant, pro per, sustained injury to one or both of her hands. She did not initially file a claim form but instead filed an application. That application apparently listed a specific injury indicating the date that, "the hand started hurting." Injury was accepted and applicant was provided with treatment. That treater eventually released her to full duties, having no impairment, and apportioning solely to nonindustrial causes. (Apparently age, genetics, and arthritis as the main culprits.) Thereafter applicant filed an objection and was sent to a panel physician. That panel physician noted that the mechanism of injury, even as described by the applicant, more closely corresponded to a continuous trauma injury. He noted that applicant had worked for some 25 years in an upper extremity occupation and the doctor was unwilling to solely attribute cause to apportion to a genetic predisposition. Furthermore, he did provide some ratable impairment. In supplemental reporting, the doctor agreed that there was a 20% apportionment to nonindustrial activities over the years.
Subsequently applicant hired an attorney who now filed a claim for continuous trauma as well as the original so called specific. That attorney requested a new QME in a different specialty (pain management) for the new injury alleged. That attorney also added numerous additional body parts not previously alleged. The Hon. Workers Compensation Judge to whom the request was directed acknowledged that while applicant had filed two applications, there was in fact only one injury. The day applicant’s hand started hurting was in fact, according to all evidence available, merely the tail end of the continuous trauma rather than a true specific injury.
Applicant's attorney filed a Petition for Reconsideration indicating that the employer should have sent applicant another claim form after they received the report indicating that there was a continuous trauma. Applicant's attorney relied on the en banc decision in Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418, which requires the issuance of a new QME panel when a new claim has been filed subsequent to the date of the original PQME evaluation. Since there were no pleadings alleging continuous trauma on the date of the original evaluation, applicant's attorney contended that the holding in Navarro demanded a new QME for the new injury.
On Reconsideration, initially the Board indicated that Reconsideration was not the appropriate procedural remedy for this case because there was no final order determining a substantive right or liability. Instead, the Petition was treated as one seeking Removal pursuant to Labor Code Section 5310. Next, the Board lamented the lack of evidentiary material presented to it, causing it to lack full knowledge of the facts and requiring some surmising.
Nonetheless, after considering the information available, the Panel stated that, "the questions that must first be resolved are whether and when claims forms were filed with regards to these injury claims, and if so, what was the nature of the injury (s) claimed. If no claim forms were filed, then Navarro does not apply and normally the parties would return to the original evaluator (4062.3(k).) If claim forms were filed, then Navarro would control the determination.” Presumably this means that if there was a claim form at the time of the initial evaluation, the panel physician would be limited to addressing any and all injuries described in pleadings available filed at the time. Injuries not described in such pleadings would be entitled to a new panel QME.
It is unfortunately a common occurrence, for whatever reasons, for applicants to list their injury as the date of onset of pain. This is a mistake. It can create multiple injuries claims when they don’t exist. If there is no true special inciting event that specifically caused the initial pain, in this case it would seem, as both the panel physician and the Judge determined, that the so called specific was at best merely part and parcel of a continuous trauma. It doesn't really serve anyone's interest to list specific dates of injury under these circumstances. Unfortunately, the Panel Decision does not explicitly address the Judge's contention that if there is only one true injury, then the number of claim forms should not be controlling.
Furthermore, attorneys should be very wary of using the panel process as a method for strategic advantage and nothing more. In this case, because the claim was incorrectly labeled as a specific and then corrected does not make one injury into two and is not an opportunity to try again. It is disturbing to everyone, particularly the Board, when attorneys selectively and after a negative finding assert various alleged procedural deficiencies to obtain a second shot at a better report. Although unstated by the Panelists and the Judge, it does seem as though there was an underlying concern about doctor shopping that was important to their reasoning. (It is true that sometimes new information is discovered which does go to the admissibility of a report, but in this case the record is limited so additional justification may simply not be available from the information provided.) See our prior article highlighting the tension between noncompliance of the regulations versus having a legitimate argument to have a report thrown out. https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2016/04/27/does-violation-of-the-qme-regulations-make-a-report-inadmissible.aspx
In terms of the Board’s reasoning, it is deceptively simple and I am afraid not necessarily definitive. First, as noted above, it doesn’t fully address the questions of one injury masquerading as two as described by the Judge. There is also much case law about constructive claim forms. For instance, when someone is injured and a claim form is not provided, the 90 days to object runs from the date of knowledge regardless of procedural formality. (See Ong v. WCAB (2000) 65 Cal. Comp. Cases 744 (writ den.).)
On the other hand, on a case like this one, when applicant obviously knows how to file a claim, and does see a doctor early on on several occasions, questions arise as to why an applicant waited so long to make known her claim for so many new body parts. There can and often is a good or at least plausible explanation for this. But, regardless, the point being that it is not obvious that a constructive claim form would not have the same effect as an actual claim form relative to the PQME process. Even if the applicant never filed a claim, the questions would still be relevant what constructive knowledge the employer had of any and all injuries at the time of the first PQME exam.
The Board cites Labor Code Section 4062.3(k) which merely states, “(k) If, after a medical evaluation is prepared, the employer or the employee subsequently objects to any new medical issue, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute.”
The Board claims that this Labor Code Section is “normally” definitive that if applicant never filed a claim form that they would be denied the right to new PQMEs for new injuries alleged. Respectfully, the Board is taking somewhat of a leap on this one. This Labor Code Section does not explicitly address the situation of the pro per applicant who may have filed a constructive claim form and/or may have become aware of new injuries after the date of the original PQME. Despite the Board's desire to neatly resolve the issues, I am afraid that additional litigation is still required to answer these naughty questions.
Tips to the Practitioner:
1. If you are appealing a procedural issue or even it is arguably procedural, always utilize in the alternative language for a Petition for Removal. Otherwise, the Board would have fully been within its discretion to simply dismiss the Petition for Reconsideration altogether. It did not need to hear this matter at all.
2. When filing an injury, do not list date of onset of pain as a specific injury.
3. Do not utilize the panel process as a deliberate game to pick and choose among doctors. If you are unhappy with the doctor, argue it is not substantial evidence and that the Judge should order a new one. Nobody likes games and it makes for bad case law.
4. As to the status as to whether a new panel is required when there is constructive notice of all claims at the time of an original panel, and whether an incorrectly filed specific really counts as a separate injury remains to be litigated at some future date and is not finally determined by this non binding panel decision.
Read the Hasley noteworthy panel decision.
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