With every dawning New Year, there come both changes and challenges rising within our industry. Even in the “off years” between major enacted compensation reforms, there are the usual promulgation of new or revised regulations by the AD, new WCAB practices, new or revised forms and benefit notices and changes in the audit system. And always daunting are the ever-present challenges to the system being brought by some of the more aggressive and creative applicant attorneys. The late and notable applicant attorney, Kenneth Rowen, once said something to the effect that workers’ compensation was a “game” like baseball, but instead of using bats, balls and gloves, the tools of the compensation game were “medical reports.” This metaphor has lasted and still persists in the ways some applicant attorneys approach litigation. So, the “game” continues, though the tactics often change and vary.
WHAT ARE SOME OF THE APPLICANT ATTORNEYS UP TO?
In reviewing our litigation landscape for last year, our partners and associates have come up with a few of the “games” being played by some, but of course, not all, of the applicant attorneys.
GETTING OUT OF THE MPN
Claiming the initial MPN visit was arranged for and therefore took place in an untimely manner
2nd and 3rd opinions under Labor Code § 4616.4 and 9767.7: In its 2016 Summer Convention Materials, CAAA referred to the 2nd and 3rd MPN based opinion process, available only to the applicant, as a “neglected but powerful tool.” This means raising a dispute over either diagnosis and/or treatment by the MPN/PTP and then demanding a 2nd opinion, and perhaps a 3rd opinion, and then MPN IMR. Note, unlike the regular IMP procedures, here, the MPN IMR physician shall conduct an actual physical examination at the employee’s discretion. Any time failure will also form the basis upon which to escape the MPN. Note, applicant must first raise a dispute over diagnosis or treatment of a selected MPN before demanding a 2nd opinion. There are no time limits to object to a PTP opinion; 2nd/3rd physician’s opinions are not subject to UR and they can order diagnostics. This process can be confusing and that is the idea.
Demanding defendant provide the “entire MPN” list statewide under the guise of a notice to produce
Demanding the individual “contract” between the MPN physician and the network. The purpose here is to show that the MPN physician was someone in violation of the MPN contract. This collateral dispute can be a time waster.
Designating an MPN physician, but then using any potential delay in authorizing as basis upon which to escape the MPN
Adding one or more body parts to an admitted claim, and then putting defendant on notice that applicant is going out-of-network. The strategy here is to cause distraction, hoping defendant will not timely authorize treatment within the MPN for the admitted body part(s).
Applicant attorney writing to the MPN physician asking for a referral to another medical specialty; and then if the consult is not authorized, they feel license to decamp from the MPN.
Some attorneys routinely refuse to participate in a joint cover letter to the PQME; they couple this with an objection to a defense advocacy letter, so the WCAB then needs to become involved before-the-fact. This slows down the process of course, which is the purpose.
Attorneys objecting to “non-medical evidence” so that the disputed item has to be withheld from the PQME, and the “dispute” then needs to come before the WCAB. This can occur from prior non-medical records and, of course, a deposition. The WCAB has to be called upon to act as arbiter over the dispute. Meanwhile, the TTD clock may be running.
Some attorneys want to “gum” up the system by refusing to agree to waive the 60 day time limit for the setting of the initial PQME evaluation, thus forcing a replacement panel request, causing even further delay. One collateral problem is that we often see some “good panels” go away, only to be replaced by “bad panels.”
Chiropractors: Requesting a chiropractor to provide treatment, even in the form of “pain management.” Also, requesting a chiropractor for an upper extremity injury, hernia or knee. They will then object to their own doctor, but preserve what they perceive is their right to request a “chiropractic PQME.” This forces litigation before the WCAB.
Injured worker may request a Labor Code § 4060 PQME, even during the 90 day investigation process. (Panel decision: Sanchez v Grapevine Catering; 2016 Cal Work Comp PD Lexis 648). This can force early discovery by defendant, and the intent is to keep defendant on the defensive.
This is a game entirely unto itself. The game becomes much more opportune when a defendant is willing to agree to multiple AME’s across specialties. This starts the “bouncing medical ball,” where we have one report coming from AME # 1, which is then forwarded to AME #2, and the report from #2 has to go back for review to #1. And of course, by using two or more AME’s, the likelihood is you have added probably 24 or more months to the duration of the claim.
Some attorneys are still going after 100% PD awards using the LeBoeuf case as the basis. These experts often produce opinions which go unrebutted. The reports themselves should not be admissible, only their live testimony, unless those reports are reviewed by a PQME or AME and thus incorporated into an opinion from the reviewing physician. Vocational expert opinions must consider medical apportionment in order to constitute substantial evidence per the appellate case of Borman; 218 CA 4th 1137. CAAA argues an expert can still opine that despite the apportionment to non-industrial factors, when considering Residual Functional Capacity, the industrially related disability and effects on ADLs is sufficient to argue total permanent disability. Always preserve the right to cross examine their listed expert, and make sure your expert can review the report from theirs and provide good rebuttal.
THE TRANSMITTAL KITCHEN SINK DEMAND LETTER
Often ignored is the initial notice-of-representation letter, which though a “form,” may contain a daunting list of demanded items. While these are “formatted” letters, some more creative advocates will claim that by ignoring the demands of the requested items and things, defendant should not be able to produce those items at trial. Often included are claims notes, claims files, investigation reports, witness statement, DVD/sub-rosa evidence and copies of notice posters at the employer premises. It is much better to respond, even if to impose an objection to items which may be privileged or without relevance to any disputed claim issue, so the record is protected.
We know of at least one applicant’s law firm with their main offices in Orange County, who routinely file their cases at the Santa Ana WCAB, even when their clients otherwise live and work in far-away counties, such as Ventura. Be reminded that under Labor Code § 5501.5(c), defendant has but 30 days within which to file a petition objecting to venue, based upon the principal office of the applicant’s attorney. If the objection is untimely, then a petition for change of venue would have to be made for cause, e.g. convenience of witnesses.
SHOULDERS AND UPPER EXTREMITIES
Upper extremity impairment is a very ripe target for enhancement under Almaraz/Guzman. Irrespective of motion loss or other anatomic measures under Chapter 16 of The Guides, some applicant attorneys are endeavoring to set the deposition of the PQME/AME, in order to prompt a much more generous impairment, starting with Table 16-3 of the Guides (pp439) and asking the doctor to provide an assessment of loss of use, against the ADL’s indicated to come up with a percentage of loss of use. So, if the physician testified applicant’s ADL’s were analogous to a 50% loss of use, the WPI would be 30%, even if the “classic” Guides based calculation were only 4%WPI. The same tactic can be used with Table 16-18 (pp 499), which lists the equivalent WPI for loss of a shoulder joint, elbow joint, wrist, thumb and fingers.