An employer or an injured worker is entitled to an advocate who will represent their point of view in proceedings at the California Workers' Compensation Appeals Board.

But what are the limits to such advocacy, particularly where the parties are using a panel QME to resolve issues?

A 2010 2-1 panel decision, Ferniza v. Rent A Center, caused some consternation in the workers' comp legal community when it appeared to construe advocacy letters from attorneys to the QME as being "information" within the meaning of Labor Code 4062.3(b). Furthermore, the majority opinion in Ferniza held that "We also construe "medical and non-medical records" to encompass letters from attorneys that discuss medical and non-medical information, particularly where the letter engages in advocacy".

Under the Ferniza panel's approach, unembellished letters transmitting neutral information would be only "communications" and not "information", but advocacy type letters would be "information", requiring that the proponent of the letter serve it on the opponent 20 days before it was provided to the panel QME. This would trigger a right of the opposing party to object to the advocacy letter, which could then not be sent absent approval by the WCAB.

The Ferniza panel was composed of former WCAB Commissioner James Cuneo and Deputy Commissioner Neil Sullivan. Dissenting was Commissioner Deidra Lowe.

Although hardly cited in any subsequent WCAB panel decisions, Ferniza remains worrisome for both employers and injured workers.

Employers may wish to have their attorneys point out inconsistencies in the factual record, entries in the medical records as well as the context of the claim. Such matters can bear on the worker's credibility and may be very important in determining issues such as injury AOE/COE, apportionment. and overlap.

Lawyers for workers may wish to point out matters that will have bearing on
the effect the injury has had on the worker. Many workers comp cases involve issues regarding compensable consequences of injuries . Where there are issues such as diminished future earning capacity under the Ogilvie case, Almaraz Guzman issues, allegations that a workers is total disabled under LeBoeuf and/or Labor Code 4662, Subsequent Injuries Fund issues, to name a few, the worker's attorney may have a number of points to advocate.

Both sides may feel the need to educate the panel QME on intricacies of workers' compensation law. A long line of WCAB cases has noted that medical opinion that assumes incorrect legal theories does not meet the substantial evidence standard.

To some extent the Ferniza case may have been an overreaction by a WCAB panel to some inflammatory statements in an advocacy cover letter to the panel QME from the defense counsel in Ferniza.

Moreover, Ferniza may reflect the worldview of some stakeholders who wish for a streamline process where worker sees a doc-in-the box QME, report is written and a simple result is rendered. I call that the "Horn and Hardart" workers comp model where the workers' benefits are essentially delivered through an automat-type system.

But the deeper problem may be that Rule 35, cited extensively in Ferniza, is overbroad and inconsistent with the QME statute Labor Code 4662.3.

If so, it would not be the first time that the WCAB has rejected a rule.
Rule 30 was rejected by the WCAB several years ago in a case, Mendoza v. Huntington Hospital.

In prepping for a recent Summer 2012 CAAA convention panel presentation that I did with attorneys Art Johnson and Joanne Helvig, I noted at least 5 ways that Rule 35 was inconsistent with Labor Code 4062.3:

1. Rule 35(a)(3) expands the term "information" used in 4062.3(a) to include
an issues letter addressed to the QME evaluator. Labor Code 4062.3(a) makes no reference to issues letter to evaluators. Indeed, that is covered under a separate subsection, Labor Code 4062.3(e).
2. Rule 35(c) seems to incorporate the expanded definition of "information"
under 35(a)(3) as an item that needs to be served on the opponent 20 days before it is provided to the evaluator
3. 35(d) incorporates the expanded definition of 'information" under 35(a)(3). Under 4062.3 and allows the opposing party 10 days to object to the "information" (defined as including the issues letter) being provided to the evaluator. Contrast this with 4062.3 which provides for a 10 day objection period for consideration of "non-medical records".
4. Whereas 4062.3(f) provides a remedy for ex parte communication violations of 4062.3(e), Rule 35(k) provides a remedy for violations of 4062.3, not just 4062.3(e).
5. Rule 35 specifies items that are not to be sent to the panel QME; Labor Code 4062.3 does not specify those items.

In coming cases the WCAB will undoubtedly be forced to revisit these issues that it addressed in Ferniza.

It would be most unfortunate if the WCAB handicaps the ability of lawyers for employers and workers to advocate for their clients. Forcing attorneys to go the board over disputes about cover letters will greatly burden an already clogged WCAB.

In dealing with these issues, the WCAB needs to look carefully at the requirements of 4062.3. To import Rule 35 into the analysis brings a host of problems into the mix, as Rule 35 does not track the statute.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Seeking to plug the dike to prevent a deluge of litigation, the WCAB has issued another en banc in the Messele case.

Let's call it Messele Dos.

After the recent Messele Uno case, the workers' comp community has been rife with commentary about whether prior panel QME appointments might have been procedurally invalid and subject to challenge.

The Division of Workers' Compensation took this seriously enough to publish an advisory newline on the subject, outlying its position on how challenges to previously issued QME panels would be handled.

The WCAB has responded. In a unanimous opinion, the WCAB has announced its intent to modify Messele Uno. Unless persuaded otherwise by written comments within the next several weeks, Messele Uno will be prospective only.

Challenges to QME panels on the basis of prematurity filed before Messele Uno (i.e. before September 26, 2011) could still be maintained. But the Appeals Board clearly wishes to avoid a "landslide of reopening". Therefore, the WCAB notes that ..."our September 26, 2011 decision would not constitute good cause to reopen any order, decision, or award."

Among those who called for Messele Uno to be prospective only was the CAAA amicus committee.

Although some particular claimant might seek to have the decision applied retroactively, the realities of the system make Messele Dos good policy.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

It may not turn out to be that big of a deal.

But recently there has been a lot of commentary in the comp community on the effects of the recent WCAB Messele en banc decision, known as Tsegay Messele v. Pitco Foods:
http://www.dir.ca.gov/wcab/EnBancdecisi ... Tsegay.pdf

Non-lawyers will find the decision to be of the "how many angels can dance on the head of a pin" variety.

At first blush it would appear that the Messele decision would have little importance in the comp system. It clarifies how long parties must wait after offering an AME before they can request a panel QME.

That's an issue that affects mainly those cases where the lawyer believes it's important to "win the race" to pick the medical specialty of the QME. And not all lawyers would agree that it's even that important to "win the race" to control the type of doctor who does the evaluation, although some lawyers swear by this strategy.

The decision simply clarifies the procedures and time frames under the DWC's QME process. That's to everyone's benefit to have a more transparent process.

But what's got many stakeholders and commentators atwitter?

It turns out that the Messele decision may be applied retroactively. And if so, some QME reports may be invalid. Doctors might not be paid for evaluations done and reports rendered. Parties might be entitled to another QME panel.

As you can imagine, this might prove to be a strategic advantage to some parties who are unhappy with a QME report if they can demonstrate that the party requesting the panel did not wait until the 16th day from the AME proposal.

Yet, if there are lots of such cases (the number of which is unknown), the system could get further bogged down.

Here is the text of a DWC "Newsline" issued on October 27, 2011 setting forth how the DWC plans to deal with the issue:
"The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Messele v. Pitco Foods Inc. Cal. Wrk. Comp. LEXIS 144, on Sept. 27, 2011. The decision concerns the number of days the parties in a represented case must wait after an agreed medical evaluator (AME) proposal is mailed before requesting a qualified medical evaluator (QME) panel from the Medical Unit. In Messele v. Pitco Foods the WCAB held (1) when the first written AME proposal is mailed or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; and (2), the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day."

The DWC announcement says that :
"Effective immediately, the Medical Unit will only issue panels that comply with the holding in Messele v. Pitco Foods Inc. In reviewing panel requests currently on file, if a panel request is found by the Medical Unit to have been filed prematurely, the unit will send a letter to the parties indicating their request will not be filled because it was filed prematurely pursuant to Messele v. Pitco Foods."

"Panels that were previously issued, where the panel request was filed with the Medical Unit prematurely pursuant to Messele v. Pitco Foods, will be handled in the following manner:"

"Where a panel was issued and a QME evaluation was conducted by a doctor selected from the panel the parties should seek a court order from a workers’ compensation judge indicating that the medical evaluation was improperly procured under Messele v. Pitco Foods Inc. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced (The panel number appears on the list of QME’s previously sent)
A copy of the order issued by the board
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
Where a panel was issued but no QME evaluation was conducted, the Medical Unit will issue a new panel if a filer establishes the panel request complies with Messele v. Pitco Foods. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced. (The panel number appears on the list of QME’s previously sent.)
In the cover letter please indicate the date of service of the original AME offer letter and the date of service of the original form 106
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
In these circumstances, the Medical Unit is requesting filers to provide additional information beyond what would ordinarily be required to issue a QME panel to facilitate the panel process."

As part of the DWC Newsline there is a "practice pointer":

"To facilitate the review process at the Medical Unit and beyond, clearly indicate the nature of the dispute for which you are requesting a panel in the AME proposal letter or the cover letter that sometimes accompanies the panel request to the Medical Unit."

"The WCAB points out in footnote 11 of the decision “[a]lthough Labor Code section 4062.2(b) may not explicitly require “service” of the AME proposal, the wise practitioner will avoid any doubt as to when the first written proposal was “made” by including proof of service. (See Cal. Code Regs., tit. 8, § 10505.) Adhering to the WCAB recommendation about the AME proposal letter will help speed the review process and reduce disputes that need to be resolved."

In closing the DWC notes that :
"It is strongly recommended that litigants refrain from filing objections to the panel requests currently on file with the Medical Unit or from sending letters asking to withdraw a panel request that has been filed but not filled, except as specified above. Finally, do not file correspondence with the Medical Unit where the unit is merely being copied on the correspondence. Unnecessary correspondence detracts the processing of panel requests."

CAAA is apparently asking the WCAB to clarify Messele, making it prospective only.

That would certainly make it easier on the system. But meanwhile, in some cases applicants and defendants may identify cases where they are unhappy with panel QMEs and comb through AME offer letters, panel request letter and calendars.

Perhaps its time to junk the entire QME system anyway.

With requests to assign QMEs continually backed up at the DWC Medical Unit and disputes festering because of delays in the cumbersome system, the system is creaky at best.

There has to be a better way.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

From the it never hurts to toot your horn department of governmental affairs:

The DWC has issued a bulletin noting that they have finally cleared their backlog of QME panel requests. Between April and June 2010 they processed about 41% of the number of QME panels they processed in 2009.

You can do the math on the back of that envelope. In two months they have issued almost as many panels as in 6 months in 2009.

Seems the DWC Medical Unit (or, more likely, the higher-up powers that be) finally got the message.

There had been widespread dissatisfaction in the comp community about how the DWC Medical Unit was handling panels. Adjusters, defense attorneys, applicant attorneys, and judges all were unhappy with the slow pace of issuance of panels, particularly in represented worker cases.

Part of the problem was staffing. But a large part appears to have been the administrative philosophy. For several years the DWC Medical Unit had allowed a slew of technicalities to slow issuance of panels.

In some cases this frustrated parties who were simply seeking to move the ball down field.

While some of the delays were undoubtedly caused by ambiguities in requests or improperly filled out forms, parties found that attempts to clarify or provide supplemental information to the unit were often ignored.

Now the Medical Unit appears to be focusing on getting the panels out.
Parties who believe they have valid objections to the panels may need to seek relief from a judge at the WCAB.

Stay tuned.

Julius Young
www.boxerlaw.com

The DWC Medical Unit has been a great source of irritation in the comp community over the past few years.

Whether you speak to adjusters, defense attorneys, applicant attorneys or even judges, there has been a sense of frustration with the Medical Unit's delay in processing QME panel requests. I've heard many complaints about how items get hung up on technicalities. Correspondence to clarify or amend requests seem to fall into a black hole, never to be acknowledged.

Attorneys were increasingly forced to take up the time of judges at the WCAB seeking orders that the Medical Unit act. In a perverse twist, the Medical Unit disciplined some QMEs for failing to meet time frames (at a time when QMEs are dropping out of the system), yet completely failed to manage its affairs to get QME panels out in a timely fashion.

The QME rules were revised, but the problems remained.

Understaffed and backed up many, many months, the DWC Medical Unit has apparently decided to do less "screening" in an effort to get caught up.

New forms have been devised. Yesterday the following forms were unveiled:

Here's the new form "Additional panel request form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_7.pdf

Here's the new form "Replacement Panel Request Form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_5.pdf

Stay tuned.

Julius Young
www.boxerlaw.com