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SPECIAL REPORT: WCAB En Banc Holds Replacement Panel Not Automatic for Failure to Timely Schedule an Evaluation

Posted by:  Sure S. Log
Topics: QME panel CCR 31.3 CCR 31.5 replacement panel QME replacement QME evaluation

California Code of Regulations 31.3 establishes the rules for scheduling appointments with a qualified medical evaluator (QME) selected from a panel. CCR 31.3(e) establishes when a QME must be available for an appointment and states, "If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party's initial request for an appointment." CCR 31.3(e) also allows either party to report the QME's unavailability and requires a replacement panel to issue "when the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party's initial request for an appointment" unless the parties waive the time limit for scheduling an initial or subsequent evaluation. CCR 31.3(f)...

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QME Selection If a Party Fails to Timely Strike

Posted by:  Sure S. Log

Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."

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Credit for Third-Party Recovery

Posted by:  Sure S. Log
Topics: credit Third party third-party settlement petition for credit third-party recovery civil claim negligence burden of proof

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

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Producing Video Evidence Prior to Applicant's Deposition

Posted by:  Sure S. Log
Topics: credibility video sub rosa deposition disclosure surveillance production post-injury

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

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Multiple QME Panels in Cumulative Trauma Claims Involving Multiple Defendants

Posted by:  Sure S. Log
Topics: cumulative trauma CT injury multiple employers LC 5500.5 QME qualified medical evaluator multiple defendants election QME panel

Pursuant to Labor Code § 5500.5(a), liability for a cumulative trauma (CT) injury is limited to the employer(s) that employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. That means multiple employers or insurers can be liable for a CT injury.

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Deferring Utilization Review

Posted by:  Sure S. Log
Topics: Utilization Review Request for Authorization RFA LC 4610 threshold issue UR CCR 9792.9.1 retrospective UR UR deferral retrospective review utilization review deferral grounds other than medical necessity

As stated in Labor Code § 4610(a), utilization review is the process a defendant uses to "prospectively, retrospectively, or concurrently review and approve, modify, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, ..." (emphasis added). UR is the process to determine only whether a request for treatment is medically necessary. It does not determine other issues.

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WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 petition for removal threshold issue sanctions interlocutory order final order nonfinal order 60 days removal

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.

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SPECIAL REPORT: WCAB Issues Significant Panel Decision on New Time Limits for Reconsideration and Orders Subject to Reconsideration

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 petition for removal threshold issue sanctions interlocutory order final order nonfinal order 60 days

Under former Labor Code § 5909, a petition for reconsideration was deemed denied by operation of law unless the Workers' Compensation Appeals Board (WCAB) acted on it within 60 days from the date of filing. Effective July 2, 2024, LC 5909 states:

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Liability for Medicare Conditional Payments

Posted by:  Sure S. Log
Topics: C&R medicare medicare-set aside settlement conditional payment compromise and release

Medicare is a secondary payor. That is, it does not have primary payment responsibility for its beneficiaries when another entity is responsible for paying for medical care before Medicare. Workers' compensation is a primary payor for work-related illnesses or injuries. Medicare will not pay for a beneficiary's medical expenses when payment has been made or can reasonably be expected to be made by a workers' compensation insurer. Medicare, however, may pay for medical services when the primary payor has not made or cannot reasonably be expected to make payment for them promptly. Those Medicare payments are referred to as “conditional payments,” because Medicare pays under the condition that it is reimbursed when the beneficiary gets a workers' compensation settlement, judgment, award or other payment. Medicare is required by statute to seek reimbursement for conditional payments related to the settlement. The Centers for Medicare & Medicaid Services (CMS) has authority to look after...

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