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Thread Title: Denied Case Based on AOE/COE Examination
Created On Friday October 01, 2004 2:18 PM


Hammer
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Friday October 01, 2004 2:18 PM

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I was at the WCAB yesterday on a Priority Conf., DOR filed by DA on AOE/COE issues. I objected to DA DOR as reuired by Rules of Practice & Procedure.

Hypo:

IW employed by ER three years as sewing machine operator. IW inform supervisor that right hand & shoulder is bothering her. She has been to see her personal physician who gave IW a note to take to her ER stating that IW was not able to continue w/ reg. job duties and needed either modification or considerd TTD. Super informs HR Mgr of the situation. HR tells super to inform IW that there is no modified work available and there is no more work available for IW. IW must go home as ER does not want IW to make her condition worse by continuing to work. By the way, this memo was contained in the SDT records from the ER.

IW comes to my office as she finds herself w/o work, Tx, $, and future. I send letter of rep and ER send delay letter to investigate. No denial has been sent yet. The adjuster sends a letter to IW, (me) informing that IW needs to attend eval. IW attends eval & Def Dr says no AOE/COE injury. Adj sends timely denial based upon the Dr. report. I also find in the IC SDT records a letter addressed to the DR. stating that IC needs his report ASAP to make determination as to AOE/COE.

At the MSC I object to the admissiblity of the Dr. medical report for noncompliance w/ LC 4061 & 4062. DA is quick to point out that this is a denied case and therefore no 4061 - 4062 letter required. I point out that the denial was based upon the DR's report. At the time the appt was made w/ this Dr. the case was not denied as the letter in the IC file reflects. I raise Bad Faith denial and list the adj that sent the denial as a witness.

DA calls the adj, I imagine to advise of the situation. By the way, I had also filed a 132(a) petition. DA was not sure if he was rep ER re: the 132(a).

Result was that matter was takken off cal. I needed to get medical reports prior to going forward. IW was receiving EDD.

Joe


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vons01
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Friday October 01, 2004 2:23 PM

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What's the date of injury?

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Hammer
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Friday October 01, 2004 4:09 PM

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Hello Vons01:

I forgot to mention this was a C.T I do not recall the exact dates as I am not in my office right now. I believe it was for the three years with LDW about 10-01-03.

Joe

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tjfujii@scif.com
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Thursday October 07, 2004 10:23 AM

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Your aoe/coe exam was actually a LC 4060 to determine liability, and LC 4061/62 only apply to already accepted claims. If the aoe/coe was not a QME, then there is a problem. But it sounds like defense obtained a 4060 exam to determine liability and that is admissable to justify denial or acceptance of the claim. Once a claim is accepted and a dispute arises, then LC 4061/4062 kick into gear and not before.

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Hammer
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Thursday October 07, 2004 11:17 AM

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I guess the real question here is which came first the chicken or or the egg?

LC 4060 examinations are reserved for denied claims.
LC 4061-4062 are for nondenied claims and having issues related to Tx, TTD, P&S status.
So, until there is a denial of a claim, based upon reasonable grounds, the parties are bound by the madatory provisions of LC 4061-4062 and there must be a "dance" prior to obtaining a QME eval. (AOE/COE)

Joe

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Edited: Thursday October 07, 2004 at 11:18 AM by Hammer

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jakelast@aol.com
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Thursday October 07, 2004 1:37 PM

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actually 4060 is not reserved for denied claims. It is reserved for cases that not accepted in order to determine compensability. Therefore you do not have to deny a case before obtaining an exam under LC 4060 but you may very well need the evaluation before you can deny the claim or else there is no basis to deny the case.

See: 4060 (c)
If 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.

Jake Jacobsmeyer
Adelson, Testan, Brundo & Popalardo

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lois lane
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Friday October 08, 2004 12:35 AM

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Jake, I have also had a DA attempt to use a 4060 on an accepted claim, with a "Disputed body part"

Then the DA starts stammering when the Judge explains 3 times why it is not admissible or permitted.

Not your firm Jake.

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Hammer
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Friday October 08, 2004 9:53 AM

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Thanks Jake:

Looking at LC 4060:

(b) Neither the employer nor the employee shall be liable for any comprehensive medical-legal evaluation performed by other than the treating physician either in whole or in part on behalf of the employee prior to the filing of a claim form " AND prior to the time the claim is denied or becomes presumptively compensable under Section 5402. However, reports of treating physicians shall be admissible."

Please correct me if I misread this section. The only reports admissible are the reports of the treating physician unless the claim is denied or the 90 day 5402 period has run.

If your interpertation is correct, then shouldn't an IW be able to obtain a 4060 eval where the IC has medical control (HCO / MPN) w/o complying w/ 4061-4062?

Joe

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Edited: Friday October 08, 2004 at 1:30 PM by Hammer

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Hammer
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Saturday October 09, 2004 7:51 AM

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Hello Jake:

I just received an interesting article in the Workers' Compensation Quarterly, Workers' Compensation Section of the State Bar of California - Vol 17 No. 2 - 2004

Medical-Legal Procedure After SB 899 for Represented Workers with Injuries Before January 1, 2005

I Quote:

"SB 899 amended Labor Code sections 4060, 4061, and 4062 and added new section 4062.2 establishing a complicated procedure for medical-legal exams and reports, AME or QME, for represented workers with dates of injury on or after January 1, 2005. However, the amendments to these sections and addition of section 4062.2 delete the procedure for medical-legal examinations and reports for represented workers with dates of injury before January 1, 2005.

Consequently confusion currently exists about whether there is any stautory basis for obtaining medical-legal reports, AME or QME, for represented workers with dates of injury before January 1, 2005.

Joe

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Edited: Saturday October 09, 2004 at 7:51 AM by Hammer

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jakelast@aol.com
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Sunday October 10, 2004 6:55 PM

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The language that you quote from 4060(b) (two posts ago) prohibits an employee from obtain an medical legal report before a claim form is filed and before denial. This language does not prohibit an employer from obtaining such a report.

This language was instituted to prevent the medical-legal abuses that were rampant in the late 1980s where mills would conduct multiple medical legal exams on IW where there was no actual claim of injury. The medical legal mills could claim that the medical legal reports were payable because there did not have to be a finding of injury to award medical legal expenses and the reports were ostensibly obtained to proved a medical issue (injury). In reality they were a cash cow for the medical groups, the allegedly injured workers were frequently gone, haven taken their couple hundred bucks for giving up a half an hour of time for the 6 "exams" that were billed out on their behalf.

Many have forgotten how often this abuse occurred and it was actually one of the driving forces behind the reforms in both 1989 and 1993. It was fairly common, particularly in Southern California (not my beloved No. Cal) for the medical legal expenses to far outstirp the potential value of any case. There are many of us who think that the only reform we ever really needed was SB 31 which limited medical legal reports to cases where a claim form was filed and then denied and that this effectively killed the mill operators (except that many of them simply opened surgical centers - the next great waive of abuse).

In a case where the employer retains control of medical care and liability for injury is accepted there is no basis for a 4060 report since liability for compensibilty is not disputed.

Finally I certainly agree with my collegue from ATB&P Jesse Rose, a former WCJ, who wrote the article in the State Bar Newsletter that there is "confusion" over the right to a medical legal exam on represented cases for injuries before 1/1/05 as there is no statute that seems to directly address the issue. I actually think that there is also no prohibition on obtaining a report as obtaining a report for injuries before 1/1/05 does not violate 4062.2 since that section is not applicable until injuries after that date.

It is my experience that most attorneys are ignoring what has come to be termed the "black hole" for exams after 4/19/04 for injuries before 1/1/05 because it is a two edged sword. If defendants cannot obtain exams, neither will AAs. That might be fine for now while AAs can direct thier clients to their house docs. But after 1/1/05, who gets to direct to their house docs and who will want to obtain medical legal reports in pre-1/1/05 cases?

Besides, I think that since there is no prohibilition on obtaining a medical report for these cases , 4064(d) authorizes it. It just provides that the IW has to pay for his/her own report.

We are all better off putting on blinders to this particular legislative blunder and trying to obtain competent medical evaluations on legitimate issues to make the system function. I have always felt that one of the worst parts of the 1989 & 1993 reforms was the elevation of procedural matters over substance. Handling WC cases became a game of "gotcha" over dates that letters were sent out, objections were made and, worst of all, who has the @*%%#%%+% presumption of correctness of the PTP, rather that the quality of medical evaluations and legitimate legal issues.

Jake Jacobsmeyer
Adelson, Testan, Brundo & Popalardo

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Hammer
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Sunday October 10, 2004 8:42 PM

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Thanks Jake:

Your insights are always appreciated.

Joe

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dmwilson
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Wednesday July 06, 2005 8:20 PM

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I'm inclined to agree that 4062.2 only applies to injuries 1/1/05 and after for represented workers. The counterpart is 4062.1 which solely applies in unrepresented injured workers' cases with doi's 1/1/05 and after.

It appears as though 4062, as previously administered, will apply to all other injuries prior to 1/1/05. AME/QME dance for represented on disputed issues except compensibility where 4060 rules and no dance is necessary.

It appears there is still prohibition to the AME/QME dance for pro pers in all instances--only panel QME on medical disputed issues.

Some affirmative defenses may not be subject to either 4060, 4061, or 4062, 4062.1 or 4062.2, others may.

However, generally 4062 applies in any case where at least one body part is accepted even if one body part is rejected. 4061 or 4062 will decide both the accepted and not accepted body parts for that date of injury.

4060 only applies when ALL (ALL) body parts are questionable.

Edited: Wednesday July 06, 2005 at 8:42 PM by dmwilson

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