Discovery Cannot Be Left Open After Conference

This Estrada case did not deal with rehabilitation, but may be just as significant as the other recent Estrada case. This appellate decision deals with a workers’ compensation judge’s (WCJ) authority to allow additional discovery after a mandatory settlement conference.

In this case the applicant obtained an evaluation from a qualified medical examiner (QME). The applicant wished to rely on this and filed for an expedited hearing. Somehow, a mandatory settlement conference was set. The defendant objected to applicant’s QME exam. Defendant objected on the basis of Labor Code section 4628 for failure to state what was relied on in forming the QME’s opinion. The QME had also issued a one page report with no reference to records provided to the doctor. The WCJ overruled the defendant’s objection and left discovery open to obtain a supplemental report from applicant’s QME.

The QME submitted a one page supplemental report. The WCJ found temporary disability based on this report issued after the MSC. The WCJ did not rule on defendant’s objection.  The WCJ disallowed defendant’s medical report on the basis that defendant was not entitled to a rebuttal QME. The defendant petitioned for reconsideration. The Workers’ Compensation Appeals Board upheld the WCJ findings and award. The defendant filed for writ of review and the applicant did not respond.

The appellate court addressed section 5502, subdivision (d) (3). The section deals with the closure of discovery at the time of the mandatory settlement conference. “The bounds of discretion vested in the workers’ compensation judge for keeping discovery open after the mandatory settlement conference are defined in section 5502. Discovery closes at the time of the mandatory settlement conference as to all evidence except for which the proponent can demonstrate was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.” In this situation the WCJ did not have discretion to allow a supplemental report.

The appellate court also indicated discovery could not be kept open in this case by giving a continuance since there was no showing of good cause for granting a continuance.

What the case teaches is that both sides should make sure they are prepared and ready to proceed at the mandatory settlement conference.


When Is The Proper Time To File A Petition To Terminate?

This case evolved after a penalty was assessed against all temporary disability paid, following a petition to terminate temporary disability benefits.

The applicant suffered an industrial injury. At a hearing the Workers’ Compensation Judge (WCJ) Robert Kutz found the applicant temporarily disabled and ordered temporary disability benefits to be continued.  The WCJ ordered the employer to report cessation of benefits pursuant to Rules of Practice and Procedure, Sections 10462 and 10464.

The employer received a medical report dated September 17, 1996. The employer paid temporary disability through September 27. 1996. The employer filed a petition to terminate benefits October 4, 1996, and also sent a letter to the applicant informing the applicant that temporary disability was ending. On October 10, 1996 the WCJ filed and served a notice of intention to terminate liability for temporary disability. The applicant objected and eventually a 10 % penalty was imposed. The WCJ relied on Labor Code section 4661.5 and Rule 10462 to assess the penalty. The WCJ believed these sections inherently in conflict but still assessed the penalty.

The Court of Appeal interpreted the two sections and indicated mere was no conflict between the two sections.  “Thus, the two provisions should be read together and harmonized as follows: An employer who reasonably believes an employee has become permanent and stationary (and therefore the employee’s temporary disability has ended) on a particular date may terminate payments as of that date and then must file a petition to terminate within 10 days. However, when the Board considers the petition to terminate, there will be a rebuttable presumption that the employee’s temporary disability should continue for one more week following the filing, and payment of temporary disability should be made for that week.”

In this case the court indicated that the employer tried to comply with the applicable sections. Section 5814 deals with unreasonable delays. The court indicated that in this instance there was no delay, unreasonable or otherwise. Therefore, even though the statute may not have been complied with correctly no 10% penalty should accrue.

The lesson to be learned is to file and serve the petition to terminate with the medical upon receipt of the medical.  Payment of temporary disability should continue for one week after the permanent and stationary date.


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives