Enstar (US) v. Workers’ Compensation Appeals Board (Rodriguez) (W/D) 82 C.C.C. 86)
The parties selected Anju Gupta M.D. to act as PQME in pain management pursuant to Labor Code §4060. Dr. Gupta issued an initial report dated March 18, 2014 and served the report on April 25, 2014, the 38th day from the date he evaluated the applicant. The day after the report was served, applicant objected to the report timely and requested a replacement panel. Defendant received the report and issued no objection.
On May 21, 2014, defendant issued an EOR addressing the bill of the Qualified Medical Evaluator’s initial medical report indicating that this was a 95 QME Evaluation uncontested and that payment was denied per adjuster instruction. On August 6, 2014, defendant objected to the initial report and a supplemental report dated May 6, 2014 which was served on June 27, 2014. Pursuant to defendant’s request a replacement PQME panel was issued, but the parties did not seek an evaluation from the new PQME panel.
Applicant and defendant ultimately settled the case based on the medical report of the Qualified Medical Evaluator, Dr. Gupta. The Qualified Medical Evaluator submitted two bills in the amounts of $1625 and $3250.
After defendants failed to pay the bills of the PQME, the physician filed a petition with the WCAB requesting a determination as to his entitlement to payment. The matter proceeded to hearing where the WCJ found defendants were not liable for payment because the physician’s report was untimely pursuant to Labor Code §4062.5. The WCJ further ruled that defendants did not waive their right to a replacement panel. The Qualified Medical Evaluator (lien claimant) filed a petition for reconsideration.
The WCAB granted reconsideration and issued a new decision that neither defendant nor applicant timely objected to the PQME’s late report and therefore defendants were liable for payment for the physician services.
The WCAB noted that pursuant to Labor Code §139.2 (j) (1) and §4062.5, an initial medical report must be prepared and submitted within 30 days of the evaluation, and neither party has liability for payment if the report is not prepared within the required time frame unless they waive the right to a new evaluation and elect to accept the original evaluation despite its untimeliness.
In this case, the WCAB found that there was no question that the physician’s initial report was late; the question was whether the parties waived their objection to the late report. The WCAB concluded the parties did waive their objections to the late report by failing to object at their earliest opportunity and prior to receiving the report and commented that failing to timely object, essentially elected to accept the physician’s report even though it was untimely.
The WCAB cited the case of Marino (2013 Cal. Wrk. Comp. P.D. LEXIS 503) which held that a party can waive its ability to object to the timeliness of a PQME report under section 4062.5. In this case, defendants made no objection to the timeliness of the physician’s report. The failure to object to raise an issue at the first proper opportunity is fairly construed to be a waiver of the objection of the issue. (US Auto Stores 36 C.C.C. 173.)
Applicant’s attorney did attempt to object to the timeliness of the report and request a replacement panel. However, the objection was itself untimely pursuant to Regulation 31.5 (a) (12).
More importantly, the Board went on to state they were persuaded that both defendant and applicant essentially elected to accept the physician’s report. While they admittedly did not do so through the use of any forms prescribed by the administrative director, as described in section 4062.5, their actions when they failed to undertake the replacement evaluation and use the reporting of the physician as a basis for settlement acted as a waiver.
A petition for writ of review was filed, which was denied
Davis v. Workers’ Compensation Appeals Board (Court of Appeal, not published) 82 C.C.C. 187
The parties selected a panel Qualified Medical Evaluator to determine if applicant’s prostate cancer was caused by his employment as a firefighter. The physician concluded that applicant’s cancer did not result from an industrial injury. At his own expense, the applicant hired a doctor to evaluate the applicant regarding the causation of his cancer. Applicant sent that report to the QME requesting a supplemental report. Defendant objected and filed a DOR claiming the request was a violation of the discovery process.
A WCJ ruled the report was not admissible because it was not obtained pursuant to Labor Code § 4060, but that the report might nevertheless be reviewed and commented on by the Qualified Medical Evaluator. Defendant petitioned for reconsideration/removal and the WCAB granted removal, dismissed the reconsideration, and rescinded the judge ‘s decision finding that the report was reviewable. The applicant’s attorney filed a petition for reconsideration from the Board decision which was denied. The applicant filed a writ of review.
Labor Code §4605 provides: “Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.” The WCAB admitted it did not consider Labor Code § 4605 when coming to their decision.
The Court of Appeal indicated the WCAB’s decision failed to state the evidence relied upon and specify the details and reasons for its decision as required by Labor Code § 5908.5 because it did not consider Labor Code § 4605. The WCAB’s failure to set forth its reasoning in adequate detail constitutes a sufficient basis to annul a decision and remand for a statement of reasons. The court noted that nothing in this decision should be considered as expressing this court’s opinion regarding the merits of the applicant’s claim.
The matter was remanded.