Workers’ Comp Case Law Review

We continue to look at recent case law which shapes the legal practice at the many WCAB offices throughout the State.

Maxham v. CA Dept. of Corrections [ADJ 3540065] is an en banc decision.  This means that all the workers’ compensation Judges must follow the ruling as set out in Maxham.  If a panel decision is not an en banc decision – the Judges can look at it to see how the Commissioners in San Francisco are deciding the appeals that go their way; yet, the Judge does not have to follow the ruling.  There are seven Commissioners in San Francisco that decide workers’ compensation appeals.  Three Commissioners are assigned to each appeal.  There are conservative Commissioners and liberal Commissioners.  Sometimes a conservative panel will decide an issue one way and a liberal panel will decide the same issue aa different way.  Panel decisions break the tide since they are decided by all seven Commissioners.

In Maxham the Commissioners decided what can be sent to a Qualified Medical Examiner [QME] or an Agreed Medical Examiner [AME].  The QME or AME are the doctors who decide what disability should be awarded to the worker when the parties cannot agree on the findings of the primary treating physician [PTP].

Maxham noted that there are two types of documents that are normally sent to these evaluating physicians:

  1. “Information” (1) records prepared or maintained by the employee’s PTP & (2) medical and non-medical records relevant to determining medical issues.
  1. “Communication” correspondence which does not contain or make reference to any information as defined above.

In Maxham, the applicant [worker] attorney sent the AME a letter which contained his legal theories as well as an FCE [functional capacity exam] which was performed on the worker to see what he could or could not do after his injury.

By law the parties have to serve the opposing side a copy of the letter and documentation they want to send to the AME/QME 20 days before they send it in.  In Maxham, the defense objected to the worker’s attorney’s letter, yet, the attorney sent it anyway.

The defense requested a court date to punish the worker attorney for sending the letter to the AME over the defense objection.

The WCAB decided that the worker’s attorney had a right to write a letter explaining the legal issues involved in the case as long as it did not contain “information” which the other side objected to.

The WCAB held that the FCE should not have been sent to the QME without first getting permission from the other side or a court order.

In order to stay out of trouble, I always send the letter and whatever else I want to send to the AME or QME to the other side.  If they object, I request a court date to get the issue resolved.

In Mary Saunders v. Synergy Therapy [ADJ 1232266] the court sent back a disability due to insomnia since the doctor did not describe how the insomnia impacted the workers activities of daily living [ADL’s].  If you are an injured worker, always describe to the doctor (1) how the injury has affected your life & (2) how your medication helps you get your function back.  The more information you give the doctor, the better he will be able to justify the disability rating and/or need for medication.

In Fahte v. Mission Hospital [ADJ9328371] the Court explained how to get a Panel in a different specialty.  Normally the primary treating physician [PTP] in a workers’ compensation case is an occupational medicine doctor, an orthopedic surgeon or a chiropractor.  When the parties have a dispute, either party can object to the findings of the PTP and request a Panel of three [3] doctors from the Industrial Medical Council [IMC].  Normally, the Panel doctor will be in the same specialty as the PTP.

If there are additional body parts in a different specialty than the PTP and/or if the parties want a second Panel the party requesting the second Panel must” “show good cause to petition for an order issuing an additional panel.

Whether good cause exists is a factual determination to be made on a case by case basis.

Two common scenarios where good cause may exist for an additional Panel occur when (1) the PTP has opined on the compensability of a disputed body part and either party objects; or (2) where the original QME, who is required to report on all disputed issues requests an additional Panel in a different specialty to make the determination.

In cases where the worker is being provided treatment, the parties should first obtain the opinion of the PTP who – by regulation – is required to report on all disputed issues.

In cases where the additional body part is outside the expertise of the PTP, the PTP can refer the worker to a different physician for a consult.  If the PTP, does this, he/she must then incorporate the findings of the consult into his next report.

Once the parties receive the opinion[s] of the PTP or the consulting physician, either party can petition the WCAB for an additional Panel.

Stephanie Souza v. Napa Valley Unified School District [ADJ8911659] provides and excellent discussion of the access standards for an employer’s Medical Provider Network [MPN].

Every employer has an MPN with a list of doctors that they will authorize to treat the injured worker.  If the MPN is not adequate, the employee can choose a doctor outside of the MPN and the carrier will have to pay for that medical care.

Puente holds that a valid MPN must have a doctor willing to treat the worker within 15 miles or 30 minutes from the workers home or place of work.  The MPN must have a specialist who can treat unusual conditions between 30 miles or 60 minutes from the employee’ home or work.

The worker will not be allowed to designate a specialist as his/her treating doctor in order to get outside of the requirements.  For example, if the worker designates a pain management doctor and can’t find one within 15 miles of his/her home or work he/she cannot go outside of the MPN if there is an occupational medicine doctor within the required 15 distance.  As long as the specialist [pain management doctor] is within 30 miles/60 minutes of the home or work cite – the MPHN is OK.

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