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Messele to Apply Prospectively

November 29, 2011 Leave a comment

The Workers’ Compensation Appeals Board has issued yet another en banc Messele case, this time deciding that its prior decisions will only apply prospectively, and not retrospectively.  You can read the full opinion here.

In other words, if you were used and abused by the Medical Unit in the past, stuck with an improperly issued panel, you have no recourse but to try to reason out some valuable life lesson to be gained from the experience.  But in the future, at least in theory, the Medical Unit will be required to abide by the strict timeline outlined by the WCAB.

Aside from my cynic compulsion to doubt the happy endings promised at the start of every endeavor, I honestly don’t see much changing in how the Medical Unit does its work.  In six months, the medical unit will again start issuing panels without reviewing applications and say that they simply have too high a volume to review and reject wrongly filed requests.

Then, defendants and applicants will each get a panel and the defendant will have to file a Declaration of Readiness to Proceed to Hearing in order to get the applicant’s attorney’s improperly made request for a panel out.

In other words, learn the new dance, same as the old dance.

Categories: Medical Unit, QMEs

The WCAB Wants Your Input!

Previously, your humble blogger had reported the decision of Messele v. Pitco Foods, where the Workers’ Compensation Appeals Board, in an en banc opinion, attempted to provide some clarity as to the proper timeline for using the panel qualified medical evaluator system.

You read the opinion.  You understood the opinion.  You were prepared to move on with your life.  Now there’s more.

The WCAB has issued another en banc opinion, in this one stating that “it was not [their] intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers’ compensation proceedings.”

While the decision currently stands, the WCAB has proposed making it apply prospectively only.  In other words, if the panel was issued outside of the proper timeline, and a party did not object before September 26, 2011, the panel stands.

In case you’re wondering, the WCAB would like to know what you think – you can submit written comments so long as they are received no later than November 19, 2011 by sending them to the Workers’ Compensation Appeals Board, Office of the Commissioners, at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its Post Office Box address (P. O. Box 429459, San Francisco, California 94142-9459).

Shall all the past be revisited and re-litigated?  Or shall well simply continue down the yellow brick road as if the Medical Unit has done no wrong?  We can hopefully expect some finality on this issue in a month or two.

In the meantime, I suggest getting cozy and familiar with the procedures outlined by the WCAB – the rules allow the players who know them to control the PQME specialty and, very likely, the outcome of the case.

When your faithful blogger knows more, so will you.

Medical Unit Inches Towards Propriety

Bowing to the voluminous complains of countless workers’ compensation attorneys, as well as the en banc decision of the Workers’ Compensation Appeals Board in Messele v. Pitco Foods, Inc., the Department of Workers’ Compensation has set out new procedures for panel requests.

Before we play the Ewok celebration dance again, let’s recognize that this is a very limited fix in a very broken system.  The Medical Unit is not about to start following its own regulations or disowning its old unsigned, unofficial memorandum.  In accordance with the Messele opinion, the Medical Unit will only start rejecting pre-mature panel requests.

At least, that is the understanding from the latest DWC Newsline.

From what I can tell, the Medical Unit will continue to:

* Issue panels in a specialty other than that of the primary treating physician (chiropractors and pain specialists for everybody!)

* Issue a second panel to an applicant because he or she now represented (more chiropractors and pain specialists for everybody!)

*[Conceivably] Issue two panels in one case because of two requests (one from the defense, one from the applicant).

In other words, we will have to continue to be vigilant and aggressive, even if that means filing our DoRs in response to the Medical Unit’s errors.

In terms of the new procedures, the Medical Unit will reject premature panel requests.  [Please see my post on Messele, above, for a discussion of proper timing.]  The DWC also suggests including a proof of service with your letter proposing Agreed Medical Evaluators and mentioning, in the proposal letter, the subject of the dispute (for the Medical Unit’s future reference).

Categories: Medical Unit, News

Reconsideration or Removal? Part 3 of 3

There you sit at your office desk, opening your mail, when you see it – a bulky envelope with an applicant’s attorney’s return address.  Without opening it, you know what it is – the applicant is filing for reconsideration of some minor procedural order that the Workers’ Compensation Judge issued but 19 days ago.

You know it is not a final order and, at most, it should be a removal action.  But now the case that was going along so well has this matter to deal with.  Picking up the phone, you call your workers’ compensation defense attorney, and decide you want to try something new to get rid of this fast.

Does your attorney have some new tactic up his sleeve to help this petition die on the vine?

Here is my idea: in the case of Sergio Corrales v. Avis Rent-A-Car, the applicant’s attorney filed for both reconsideration or, in the alternative, removal of a WCJ’s order setting the underlying cases for trial.  The Workers’ Compensation Appeals Board dismissed the petition for reconsideration as improper, because the order setting the cases for trial was not a final order.  It then denied the petition for removal on other grounds.

How is this relevant?  The WCAB specifically admonished applicant’s attorney that “the filing of a petition for reconsideration to challenge the WCJ’s order setting this case for trial could be viewed as an action or conduct that is frivolous or solely intended to cause delay and subject to sanctions…”

In the case of Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841, the WCJ specifically recommended that sanctions be imposed for filing for recon from an order for a replacement panel, but the WCAB did not address the issue, either as a silent rejection or as an unintentional oversight.

Corrales was filed in June of 2011, and is a slightly more recent opinion than Morales.

Now comes the maneuver:

Upon receipt of the petition for reconsideration, send a letter to applicant’s attorney with a copy of the Corrales panel opinion [please e-mail me if you would like a copy of the panel decision:], and a copy of a panel, en banc, or higher court opinion finding a certain act appropriate for removal but not appropriate for reconsideration.

Don’t threaten – just point out that a petition for reconsideration is not appropriate in this case and it should be withdrawn.

If the applicant’s attorney does not withdraw the petition for removal before you file your answer, seek sanctions.  If this crazy maneuver works, the applicant’s attorney will either withdraw the frivolous and inappropriate petition for reconsideration, or (hopefully) the cost of fighting the petition will be out of applicant’s attorney’s pocket.

Granted, this is by no means an established tactic – but if you’re looking to try a new maneuver, this might just work.  What’s more, there will be close cases, where there is no established precedent for whether the proper course of action is reconsideration or removal.  But, in most cases, this might just be the trick to cut delay and litigation costs.

Below are some good examples of removal and reconsideration cases.

Proper actions for removal:

  1. Finding of fact as to which of two QME panels was properly issued. Tsegay Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (en banc).
  2. WCJ’s order to take matter off calendar until applicant was re-evaluated by AME.  Gregory Lapold v. WCAB, Lloyds Transmission (2011) 76 Cal. Comp. Cases 1030.
  3. Judge’s denied of a petition to have three cases consolidated into one.  PBMS, Inc. v. WCAB (2010) 76 Cal. Comp. Cases 1015.
  4. WCJ’s order to the Medical Unit to issue a new panel following a finding of ex-parte communication.  Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841.
  5. Judge’s order regarding which of defendant’s representatives could attend applicant’s deposition.  Amador Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191.
  6. Judge’s order denying defendant’s petition to disqualify applicant’s attorney. Advantage Workers’ Compensation Insurance Company v. WCAB (2010) 75 Cal. Comp. Cases 1415.
  7. Judge’s issuance of an order alleging that Defendant’s attorney and its adjuster were in contempt of court.  All Tune & Lube v. WCAB (2010) 75 Cal. Comp. Cases 503.
  8. WCJ’s order for additional discovery following trial to “develop the record.”  Bates v. Valley Vintners Wine Company (2011).
  9. An order granting a party motion for change of venue.  French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.
  10. WCJ’s order denying defendant’s petition to dismiss.  Barbara Guthrie v. Weyerhaeuser Company (2004).
Proper actions for reconsideration:
  1. An order finding liability for an injury.  Denise Hernandez v. Big Buy Food (2011).
  2. An order to take nothing on a Labor Code section 132a claim.  Miller v. County of Alameda (2011) 39 CWCR 208.
  3. A finding that defendant is not required to pay for a medical procedure.  Navarro v. Vengroff  Williams Associates (2011).

Timing Your Panel Request

September 28, 2011 5 comments

The California Workers’ Compensation Appeals Board has issued a new en banc opinion on the issue of timeliness of panel requests.  In Messele v. Pitco Foods, Inc., the defendant objected to the treating physician’s report and proposed the use of an Agreed Medical Evaluator to applicant, setting up the requirements for a request for a panel in accordance with Labor Code § 4062.2(b).

Applicant responded with his own AME proposals and then requested a panel.

Defendant then filed its own request for a panel.  The timeline was as follows:

Date of Injury———————————1/29/10

Defendant’s Objection ****************4/20/10

Applicant’s AMEs—————————-4/26/10

Applicant’s Panel Request *************5/01/10

Defendant’s Panel Request————-5/04/10

The Medical Unit, no longer resolving disputes, issued a panel in response to each request, with different specialties.  The Workers’ Compensation Judge ruled that the 5-day “mailbox” rule of the Code of Civil Procedure (§ 1013(a)) applies, and that applicant’s panel request was untimely, so defendant’s panel stands.

For the folks keeping score at home, the first day the panel request could have been filed would have been May 6 (April 20 + 10 days is April 30; plus 5 days for mailing is May 5, so the first day a panel could be filed is May 6.  In the WCJ’s report and recommendation on applicant’s petition for removal, the WCJ acknowledges this error and recommends that both panels be found premature.

On a petition for reconsideration, which the WCAB found should have been a petition for removal, applicant’s petition was granted and the WCJ’s order was rescinded.  The WCAB found that CCP § 1013(a) and 8 CCR § 10507 require the application of the “mailbox” rule to the process of panel requests.

Applicant’s argument that the mailbox rule doesn’t apply and defendant’s argument that the controlling date is when the Medical Unit received the request, not when it was made, were both rejected.  The rule applies and the controlling date is the date the request for a panel is made.

What does that mean for us in the industry?  Once an objection to a primary treating physician’s report has been made by either side, fill out a panel request form dated for the sixteenth day after the date of the objection.

So if the objection was made on November 1, 2011, the counting begins on November 2, 2011, and the panel request form should be dated for November 17.  As soon as November 17 comes around, the panel request should be in the mail, in order to be the first one in and thereby control the specialty.

As yet another aside, the rules clearly state that the specialty of the panel should be the same as that of the treating physician unless documentation is provided for a good reason to the contrary.  But, in terms of practice, this rule of often enough ignored by the Medical Units and the WCJs alike, and it is much better to be the first to request a panel.

Categories: Medical Unit, QMEs