Written By Thu Do
Gilson Daub was recently invited to take part in 2018 California Applicant’s Attorney Association Winter Conference held in Rancho Mirage as a panelist in the Section “The QME Quagmire in 2018”. As a defense attorney, I was able to provide the defense perspective on how to use the medical-legal process. I was honored to be included in the panel, which included two prominent Los Angeles Applicant Attorneys, Charles Rondeau and Jamie Berenson, as well as Attorney, Sue Honor, who previously worked for the medical unit.
The ultimate question for the panel was “when should we proceed to a QME?” Many parties will immediately object to a treating physician’s report in an effort to “move the file” through initiating the medical-legal process without a true dispute. Other parties wait on the treating physician, when no dispute exists, hoping for an agreeable final report upon which they can settle. While this later method is the way the worker’s compensation system was designed to function, the litigation process has complicated the procedure and almost anything can be "in dispute”. A savvy defense attorney must appropriately strategize and weigh their options and truly assess where there may be a dispute.
Waiting on a final report from the treating physician is not often practical or recommended, especially when an applicant is represented by counsel and is treating with a doctor who is known to drag on and on with cookie-cutter reports. Additionally, when an applicant is represented, there is almost always a dispute over permanent impairment or limitations and Labor Code 4061(i) requires a medical-legal evaluation when such a dispute exits. Furthermore, failure to object to a treating physician’s opinion on temporary disability or work status early on, could result in a waiver of a temporary disability overpayment if a panel QME later finds the applicant should have been permanent and stationary at an earlier date. (See J.C. Penney Co. v. WCAB (Edwards) (2009) 74 CCC 826.)
Since the CAAA conference, the Court of Appeals recently allowed a matter to proceed to trial without both a final QME and PTP report. In Sequeira de Bustos v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 4 (writ denied), the WCAB awarded an applicant 20 percent permanent disability based on the permanent and stationary report of a QME, even though the primary treating physician never issued reports addressing the applicant’s permanent disability. The WCAB rejected the applicant’s assertion that the defendant’s DOR violated LC 4061(i), which states in pertinent part, “[n]o issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator,” because it was filed without report from the primary treating physician addressing the issue of permanent disability. It explained that LC 4061(i) does not require that the evaluations all find the injured worker to be permanent and stationary or that the evaluations address permanent disability. The WCAB concluded that the QME’s report provided substantial medical evidence sufficient to support an award of permanent disability.
Due diligence arguments were also at the forefront of our discussion. If you inherit a file where the applicant has already been favorably deemed permanent and stationary by the treating physician with reasonable impairment, it would be prudent for defendants to argue a lack of due diligence or laches against applicant’s counsel for failing to object to the report and secure a panel. Defendants may attempt to push the matter to trial at this time arguing that it is ultimately the responsibility of the applicant to challenge a report they disagree with and defendants should not be expected to wait indefinitely for them to obtain a panel. Defendant’s also need to be aware that this argument may be asserted against them as well, as the Court of Appeals has upheld trial settings despite L.C. 4061(i)’s requirements for a medical-legal evaluation when Defendants failed to object to applicant’s counsel’s DOR. (See Orellana v. Pro Wash, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 40).
Based on the discussion amongst the panelists, both applicant attorneys and defense attorneys plan to use the due diligence argument to push matters to trial with only a treating physician report in hand. While the Court of Appeals has inconsistently applied the requirement of L.C. 4061(i), the key take away was that both parties must be proactive in pursuing their respective positions or risk waiver of their objections.
Another hot topic of discussion was the recent En Banc Decision, Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (en banc decision) addresses the legal distinction between “information” and “communication” as used in Labor Code Section 4062.3. Recently, parties have moved away from providing their position statements in fears that this will delay the QME process when the other side is objecting to certain information that can be provided to the QME. Some attorneys unfortunately, have resorted to sending generic advocacy letter to “move the process along”. However, as attorneys, we need to take a stand on properly advocating for our clients.
In Maxham, the WCAB held that:
- “Information,” as that term is used in section 4062.3, constitutes (i) records prepared or maintained by the employee’s treating physician or physicians, and/or (ii) medical and nonmedical records relevant to determination of the medical issues.
- A “communication,” as that term is used in section 4062.3, can constitute “information” if it contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of medical issues. (Emphasis added) (Id. at pp.2, 13).
Since Maxham tells us that in certain circumstances our position letters can cross over from communication” to information”, will we potentially see a flood of DOR’s for the WCAB to decide the scope of medical legal letters until further clarification? Can we expect to see due process objections if WCJs gut medical legal letters?
But my question is why flood the courts with this issue: If a party wants to get information to the QME or AME they are going to get it to him one way or the other, either by their position statements, interrogatories or by providing the information at a cross examination. As long as there are no egregious misstatements or false statements being made in the letters, why not let the information get to the QME, it’s likely going to get to the doctor one way or the other.
Definitely, the take away from being a panelist in discussing issues with QMEs is to 1) only request a QME when there is a medical dispute, 2) timely object to a PTP report if there is a medical dispute, and 3) don’t be afraid to provide position statements to the QME since this is where great lawyering takes place.
Thu Do is the Managing Attorney of Gilson Daub’s San Fernando Valley Office. Her team handles cases at Workers’ Compensation Appeals Board Venues in Van Nuys, Oxnard, Santa Barbara and San Luis Obispo.