Defending a Second Panel Obtained By Filing a Cumulative Trauma Claim

The Workers’ Compensation Appeals Board recently issued its decision in Feige v State of California 2017 Cal. Wrk. Comp. P.D. LEXIS 10. The potential ramifications of the decision extend far beyond the rights adjudicated between the parties in this case or of State Compensation Insurance Fund’s continued historical propensity for either making or reinforcing bad law.

While in pro per, Feige asserted an Application alleging a specific industrial injury involving multiple body parts. A QME conducted a comprehensive medical evaluation and concluded that the employee’s condition was caused partially by the specific injury and a cumulative trauma. Subsequent to the receipt of the report, Feige retained counsel who promptly filed an Application alleging a CT and sought a QME panel. Defendant objected, claiming that Feige needed to be re-evaluated by the initial QME. After trial on this issue, the Judge held that the issuance of the second QME panel was appropriate.

SCIF filed a Petition for Reconsideration, which was immediately denied because the Judge’s finding was not a final Order pursuant to Capital Builders Hardware v WCAB (2016) 5 Cal App. 5th 658, but was treated as a request for Removal. That request was then denied on the grounds that (1) the requirements incidental to the granting of a Petition for Removal had not been satisfied pursuant to Labor Code Section 5310 and (2) an employee cannot be compelled to return to the initial QME in connection with a subsequently filed application, pursuant to Navarro v City of Montebello (2014) 79 CCC 418.

This result was predictable, not only in light of Navarro, but also CCR Section 35.5(c)(1) which requires the QME to address all contested medical issues reported on one or more claim forms arising from injuries occurring prior to the date of the employee’s appointment with the physician. More importantly, Feige was in pro per at the time of the assertion of the initial application.

This scenario is different than that which we frequently see. A represented employee is evaluated by a QME. The physician opines that there was no evidence of any whole person impairment. The employee’s attorney proceeds to file a CT application in order to pursue a quest of doctor shopping by obtaining another QME panel pursuant to Navarrowhich will either enable him/her to get another bite at the apple or use this tactic for the purpose of compelling a settlement. From our clients’ perspective, each of these goals is repugnant and contrary to common sense. What can we do to articulate our clients’ concerns and prevent this outcome?

Labor Code Section 5813 provides for sanctions where a party engages in bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. CCR Section 10561(b)(1)includes within the definition of bad faith actions “filing a pleading unless there is some legal justification” to do so. Providing money to the employee and his/her attorney should not constitute a legal justification. Although an employee is required to declare under penalty of perjury that there’s been no violation of Labor Code Section 139.3 (illegal referrals) and to acknowledge being advised by an attorney of the selection of venue and the fact that he/she will be responsible for transportation costs (Labor Code Section 4906), there is no requirement that the employee verify the Application (Labor Code Section 5500 merely requires that the Application comply with the requirements set forth in the CCR, which requires separate Applications for each separate injury (10401) and that the pleading must be filed on the approved form (10408)). Thus, additional evidence needs to be secured to demonstrate that the subsequently filed Application is erroneous, entitling the employer to sanctions and an Order prohibiting the second QME exam.

Where an initial Application is asserted alleging a specific injury, insure, during the course of the deposition, that the deponent is pinned down with respect to the existence of any other injuries. His/her testimony regarding the non-existence of any other traumas will create a basis for impeachment in the event that a subsequent Application for an injury occurring prior to the deposition is asserted. With knowledge that applicant’s counsel will claim that his/her unsophisticated client didn’t know the meaning of cumulative trauma, attempt to minimize, during the course of the deposition, the arduousness or repetitive nature of the job duties.

Where an Application is asserted subsequent to the receipt of the QME report, rule out whether the pleading can be attacked on its face, such as Statute of Limitations pursuant to Labor Code Section 5405 or where the employee was fired after the second alleged injury and asserted a claim thereafter (Labor Code Section 3600 (a)(10)). If the evidence is not sufficient for your intended purpose, consider conducting the employee’s deposition (Labor Code Section 5710 does not preclude you from conducting a second deposition of an employee based on the filing of an Application after the initial deposition). The interrogation should not only focus on the employee’s previous testimony in which other industrial traumas were denied, but also on whether he/she was truthful with the QME and whether the employee was cognizant of the QME’s wash out opinions before the filing of the second Application. Unless applicant’s counsel is asleep, working his/her mail or just reading the newspaper, I wouldn’t recommend directly asking the employee if the Application was filed because of his/her dissatisfaction with the initial QME’s findings.