Oksana S. Vovk,
Senior Attorney & Marketing Manager
will present:
"The First 90 Days: Preliminary Discovery"
on Tuesday, August 10, 2021
285 East Hospitality Lane
San Bernardino, CA 92408
Interesting Parker & Irwin Case Information
From the Desk of:

Needless to say, the current pandemic has caused a number of changes at the WCAB, and one of those is a delay in receiving decisions from the Appeals Board on Petitions for Reconsideration.

I completed a 4-day trial in a psychiatric case almost 18 months ago on 2/6/20, with the judge issuing a decision in May 2020 that the applicant did not sustain a work-related injury and the defendant’s actions were all protected by a lawful, good faith, personnel action defense.

Applicant’s counsel filed a Petition for Reconsideration which was granted on 7/6/20, with the commissioners stating that they would need more time to study each and every action taken by the defendant before they could reach a decision.

Now, more than a year later, a decision has still not been reached. However, the WCAB did issue a statement in January 2021 discussing the backlog of cases it faced. The WCAB said that 60% of the cases are with them for less than 1 year, 33% are with them for 1 to 2 years, and 7% have been with them for 2 years or more.

I predict the long wait, in this case, will be well worth the result.
From the Desk of:

I received a notification from a certain Applicant Attorney's office that his clients were going to audio record QME evaluations. Sure enough, upon arriving at the evaluation, one of this attorney's clients, the applicant, indicated to the QME doctor she was going to audio record the proceedings. This caused the doctor to terminate the evaluation.

Shortly after this terminated evaluation, our office received a bill from the QME doctor in the amount of $500 for a “No Show Fee.” My knee-jerk reaction was to object to the charge, file a DOR for an MSC so the Judge could decide if the doctor is allowed the charge this fee as he refused to proceed with the evaluation. If he is allowed to charge the fee, should the applicant/applicant attorney pay for the bill? Prior to the Hearing, I did a little research on the issue of audio recording QME appointments.

In Rafael Guzman Rodriguez, Applicant v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408, a Noteworthy Panel Decision, the Applicant wanted to audio record the evaluation with the audio recording function in his phone, pursuant to Code of Civil Procedure § 2032.510. Such CCP section allows evaluations to be audio recorded by a Court certified stenographer, as well as being audio recorded, in Civil Cases. The QME doctor in Rodriguez, as in my case, refused to go through with the evaluation being audio recorded by phone. The matter was the subject for Trial before a Workers Compensation Judge.

The Trial judge determined the applicant had the right to pay for a Court Reporter to audio record the proceeding, but not use his phone to audio record the evaluation. Under Reconsideration, the WCAB Panel determined under CCP section 2032.510, the applicant may “record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” Basically, if the CCP section applies in the Civil arena, it should also apply in the Workers’ Compensation arena.

How does this ruling affect the Defense in the future?
Certain applicant attorneys are using this audio recording of the evaluation as a tool for preventing an evaluation by a conservative QME going forward, knowing many QME doctors will not go forward with an evaluation being audio recorded. This allows the applicant the luxury of requesting a Replacement List of PQME doctors from the DWC Medical Unit, under CCR section 31.5 (a) (5) because the QME is unavailable pursuant to section 33 (Unavailability of the QME). However, under CCR section 33, none of the reasons are applicable here.

Thus, in the event, if the applicant attorney requests a replacement Panel under this section, there may either be a Response by Rejection of the Request for a Replacement Panel or no response at all.

Without a Replacement QME Panel to determine Permanent Disability, perhaps a creative defense attorney can negotiate a quick resolution of the case by C&R Agreement based upon the Range of Medical Evidence. Alternatively, use a conservative AME doctor.

Pssst: The real grounds for requesting a replacement Panel in this instance may be found under CCR section 31.5(a) (15). The selected medical evaluator, who otherwise appears to be qualified and competent to address all disputed medical issues refuses to provide, when requested by a party or by the Medical Director, either: A) a complete medical evaluation as provided in Labor Code sections 4062.3(i) and 4062.3(k).
Don't let this get around!
From the Desk of:

A word of advice: Just because the applicant’s counsel objects to a letter sent to the applicant pursuant to CCR section 10550 advising of your intent on filing a Petition for Dismissal due to lack of prosecution, it doesn’t mean that a judge will agree with their objection.
 
I recently had a case in which the applicant sustained an accepted injury on 3/11/20 to the right ankle.  She received treatment through Concentra, with the last report being a physical therapy report of 4/29/20 stating she no longer had any pain or soreness.  She did not attend an MMI exam. The applicant was laid off with 9 others due to a work slowdown due to COVID. This resulted in her filing a 132a claim and obtaining counsel.  
 
The applicant eventually selected a physician in the MPN in September 2020, but no exam was ever scheduled. It was agreed that after several inquiries to the applicant’s counsel as to whether an exam was being scheduled, that we would take no further action, with the intent on seeking dismissal of the applicant’s case one year after the application was filed.
 
Applicant and AA were provided with written notice of our intent on filing a Petition for Dismissal on 5/4/21.  AA timely objected to this on 5/8/21, stating that the applicant was “a bit freaked out” about COVID and missed some medical appointments.  AA stated they had advised the applicant of the urgency to keep her appointments.
 
We waited to see if AA scheduled applicant for an exam with the PTP, and when we confirmed an exam had still not been set by 6/14/21, we filed our Petition for Dismissal of an Inactive Case on 6/18/21, noting in the petition that AA had still not scheduled applicant for an exam with the PTP. On 6/18/21, we received a Notice of Intention to Dismiss Case from the WCJ, stating that both the case in chief and 132a claim would be dismissed without prejudice unless good cause to the contrary was shown in writing within 10 days.  The WCJ specifically said that “good cause” would not be found by mere objection, but rather by the specific response to the basis for dismissal together with copies of any additional documentary evidence to be submitted, and an offer of proof as to any oral testimony to be presented at a hearing on the issue. There was no response to this from AA and on 7/16/21, the WCJ issued her formal Order Dismissing Case.

I suspect AA had lost contact with the applicant and was making an objection to my notice to try and stall things out. It goes to show, you don’t have to drop your argument just because AA says the applicant is ready and willing to move their case forward.
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