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New En banc decision from WCAB allows Defendant's more Discovery

Mendoza v. HuntingtonHospital (ADJ6820138) - 06/03/2010

By Stephen Roberts


Amelia Mendoza worked in a hospital and was bitten and scratched by an infectious disease patient. She went to the emergency room and was treated for a scratch on her left arm and discharged. Subsequently she collapsed into a coma while eating at a restaurant. She remained in a coma and was diagnosed with an intracerebral hemorrhage. Applicant's claim was denied, but her treating physician wrote reports indicating her condition was industrial. There is some dispute over when defendant received the treating doctor's report, but ultimately defendant objected to the treating doctor's opinions on causation and suggested AME's.


The case was then on calendar for a priority conference and Applicant argued the case should be set for trial on causation and that under AD Rule 30(d) (3) defendant could not obtain a panel QME report because it was not obtained before the claim was denied. Applicant also argued Defendant did not timely object to the opinions of the treator and therefore was also barred from obtaining a panel QME on those grounds.


The judge ruled that defendant had timely objected to the treating doctor's reports and that unless the parties reach an agreement on an AME then defendant may request a list of panel QME doctors on the issue of compensability. Applicant filed a Petition for Removal and the WCAB accepted the case on removal and ultimately issued an En banc decision. It is important that this is an En banc decision because that means the decision is binding on all Workers' Compensation Judges, as opposed to a three judge panel decision which is only binding in the particular case related to which it was issued. The WCAB has only issued two En banc decisions so far in 2010.


The Appeals Board addressed the validity of AD Rule 30(d)(3) when compared to Labor Code sections 4060(c) and 4062.2. They also addressed whether or not there are any time limits in Labor Code sections 4060(c) or 4062.2 which would affect defendant's right to a panel QME in this case.


Labor Code section 133 allows the Administrative Director to do all things necessary to exercise any power granted to the Division of Workers' Compensation by the California Legislature, This is what allows the Administrative Director to adopt rules ultimately found in Title 8 of the California Code of Regulations. The Administrative Director specifically is not empowered to create rules that are inconsistent or in conflict with a statute. (California Government Code section 11342.2) In this case the Workers' Compensation Judge found that AD Rule 30(d)(3) (Title 8 California Code of Regulations section 30(d)(3)) was inconsistent with Labor Code sections 4060(c) and 4062.2, and the Appeals Board agreed.


The portion of AD Rule 30 involved in this case is relatively new. Subsection (d)(3) became operative February 17, 2009. It was published in the May 2009 Supplement to the Workers' Compensation Laws of California (LexisNexis). This subsection states in relevant part that "[w]henever an injury or illness claim of an employee has been denied entirely by the [defendant], only the employee may request a panel of Qualified Medical Evaluators as provided in sections 4060(c) and 4062.2." This means that if defendant denies a claim on factual grounds and later decides that there are medical issues relevant to the issue of compensability, defendant cannot at that point obtain a panel QME. Even more concerning would be a situation where a claim is denied based on the medical opinions of the treating physician, who later changes his opinion and indicates the claim is compensable. Applying AD Rule 30(d)(3) to that scenario would result in defendant being unable to do anything to rebut the treating doctor's medical opinion except try to convince the doctor to change the opinion.


Labor Code section 4060(c) indicates that "[i]f a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in section 4062.2."


Labor Code section 4062.2 then indicates, in relevant part, that either party may initiate the process of selecting an agreed medical examiner by proposing at least one doctor to the other side, in writing. If the parties cannot agree on a doctor within 10 days, then either party may request a list of panel QME's.


Nothing in Labor Code sections 4060(c) or 4062.2 prohibits the process from taking place if a claim has been denied. In fact, in referring to examinations to address the compensability of a claim, section 4060(c) refers to obtaining an evaluation under section 4062.2 "at any time after the filing of the claim form". This does not limit the availability of that process to only during the first 90 days that defendant has to decide whether to accept or deny the claim. It specifically makes the process available at "any time" after the claim form is filed. Section 4062.2 states that "either party" may request a QME panel.


The Appeals Board states "[t]herefore, when read together, sections 4060 and 4062.2 establish that "either party" may request a QME panel "at any time." As a result, Rule 30(d)(3)'s limitation that "only the employee" may request a QME panel when compensability has been denied conflicts with the language of sections 4060 and 4062.2."


Finally, Applicant argues that defendant may not obtain a report under Labor Code 4060 because it did not timely object to the opinions of the treating physician on compensability. Labor Code section 4062(a) indicates that a party has twenty days from receipt of a report to object to the opinions expressed in that report. Where Applicant's argument fails is that disputes over compensability are not covered by section 4062, and section 4062 specifically indicates it does not apply to issues of compensability. Labor Code section 4060 deals with disputes over compensability and it directs the parties to Labor Code section 4062.2. Labor Code section 4062 does not enter this process at all.


The Appeals Board found that in cases where the entire claim is denied, there is no requirement for defendant to object to any physician's reports on the issue, within any set timeframe. This does not mean that defendants should ignore appropriate opportunities to obtain a report under section 4060. If not obtained in a timely manner, in the face of a contrary medical opinion, defendant could be left without the ability to get a report if applicant files a DOR for a priority conference and convinces the judge that defendant has not acted reasonably by not obtaining a section 4060 report. Under that circumstance discovery could be closed and the case set for trial without any reliance on the now defunct Rule 30(d)(3). This decision is not permission to take all the time in the world to investigate claims.


The Appeals Board sustained the trial judge's opinion and held that AD Rule 30(d)(3) is invalid, but the case was returned to the trial level for further proceedings and decisions. Defendant will be able to obtain a panel QME to address compensability, but that does not mean the doctor will necessarily disagree with the treating physician. Ms. Mendoza may still prevail, but defendant will at least have the opportunity to receive another opinion on compensability.


You can read the decision titled Mendoza v. Huntington Hospital (ADJ6820138) – 06/03/2010, along with the other en banc decision of 2010, also issued on June 3rd, at the WCAB website linked below.


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