California: When to Object to a Treating Physician’s Permanent Disability Determination

California: When to Object to a Treating Physician’s Permanent Disability Determination

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California Labor Code Section 4062 provides that if either party objects to a “medical determination” made by the treating physician concerning any medical issues not covered by Labor Code Section 4060 or 4061 and not subject to Labor Code Section 4610, the objecting party shall notify the other party in writing within 20 of the receipt of the report if the party is represented or 30 days if the employee is not represented. Thus, we know that a represented party has 20 days to object if the objection falls under Labor Code Section 4062. What if the treating physician finds no permanent disability? When must the employee object to that determination so as to proceed with a Panel Qualified Medical Evaluation (QME)?

Objections to a treating physician’s assessment of permanent disability fall under Labor Code Section 4061. The current version of Labor Code Section 4061, as did the prior versions, does not specify a time frame in which either party must object. Labor Code Section 4061 speaks in terms of if either party should object, not as to when either party must object. The question is whether a reasonable time limit should be implied or whether either party can wait years or for however long they choose prior to objecting to the treating physician’s opinion concerning PD.

This was precisely the issue recently addressed by a panel of commissioners with the WCAB in Benson v. City of San Diego, 2012 Cal. Wrk. Comp. P.D. LEXIS 111. In Benson, applicant’s treating physician Roger Freeman, M.D., wrote a November 7, 2005 report in which he declared applicant’s injury to be permanent and stationary and found no permanent disability as a result of the injury. After returning to full duty, applicant incurred an additional injury and obtained attorney representation. In December 2008, the attorney objected to Dr. Freeman’s opinion that applicant had incurred no permanent disability. Applicant sought and obtained a QME from Dr. Greenfield. Dr. Greenfield disagreed with Dr. Freeman’s opinion that applicant had incurred no permanent disability. At trial, defendant objected to the report of Dr. Greenfield on the grounds that it was not timely obtained pursuant to Labor Code Section 4061. Following the trial, the WCJ excluded Dr. Greenfield’s report from evidence. The basis for his exclusion of the report was the substantial amount of time that had elapsed between the time of the treating physician’s permanent and stationary report and the applicant’s objection to that report.

In addressing the WCJ’s determination to exclude Dr. Greenfield’s report, a majority of the commissioners on the panel noted that Labor Code Section 4061(d) includes no specific time period for making an objection or obtaining a QME evaluation and report. To the contrary, the majority observed, the section contemplates that the lack of agreement on the issue of permanent disability will be addressed by consideration of reports from both the treating physician and a QME.

The majority further stated that in this case, applicant’s failure to object to her treating physician’s opinion that she did not incur permanent disability was not “patently unreasonable” in light of the two surgeries that were performed, the prolonged period of her recovery, and her apparent faith in the treatment regimen provided by Dr. Freeman. The panel found that applicant’s paramount interest of returning to work full duty and the fact that she was not represented at the time Dr. Freeman issued his report made her lack of objection to Dr. Freeman’s report more reasonable.

The commissioners in the majority concluded by stating:

"Our conclusion in this case does not mean that there are no circumstances under which a QME report should not be allowed into evidence because of unreasonable delay in objecting to a treating physician’s opinion. Indeed, the Legislature provides specific periods of time within which objection must be raised to proposed medical treatment. (See Lab. Code, § 4062.) But as to the issue of permanent disability in this case, we find no compelling reason to conclude that applicant’s use of the QME was unreasonable or that his report should not be received into evidence. To the contrary, defendant made no showing that it incurred any prejudice because of the passage of time between the date of Dr. Freeman’s report and the date of Dr. Greenfield’s report. Receipt of Dr. Greenfield’s report into evidence helps assure that there is a complete medical record available to the WCJ pursuant to section 4061 before a final determination is made on the issue of permanent disability."

The dissenting commissioner essentially argued that applicant took no action to contest the opinion of her treating physician for well over two years notwithstanding defendant’s notices to her of her right to obtain a panel QME report. She noted that while it is true that Labor Code Section 4061 did not include an express time period within which an objection to the report of the primary treating physician must be made, “this does not mean that the time period for objecting is unlimited”. She believed that applicant slept on her rights to the prejudice of the defendant. Based on this, she argued that the WCJ’s ruling excluding the QME from evidence should have been upheld.

There are many unrepresented applicants who decide to obtain a panel QME only after a WCJ has expressed some concern about the adequacy of the treating physician’s report months or years after the particular applicant has been determined to be permanent and stationary. There are also those applicants, like the one in Benson, who decide to obtain representation years later. Regardless of the circumstances for the dilatory objection, it appears safe to say that there are only very broad and loosely defined time limits when it comes to objecting to a treating physician’s opinion concerning PD.

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

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