In a published decision the court discusses “good faith personnel action” under Labor Code section 3208.3(h)

The applicant was a supervising probation officer. The applicant counseled two officers which resulted in an internal affairs investigation. The applicant became upset and filed a psychiatric claim.

The parties went to an Agreed Medical Examiner (AME) who found the claim compensable. The Workers’ Compensation Judge (WCJ) and the Workers Compensation Appeals Board (WCAB) determined after multiple hearings that this was not a “good faith personnel action” under Labor Code section 3208.3(h).

The appellate court reversed and remanded for further hearings. There is a very good description of what constitutes a good faith personnel action on page five. Whether there has been a psychiatric injury must be established by expert medical opinion. Then the WCAB must decide that the actual events of employment were personnel actions that caused the injury. If the personnel actions were a “substantial cause” (35 to 40 percent) of the psychiatric injury it is not compensable. The medical expert has no authority to decide whether it is a personnel action. “Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.”


Applicant who moves out of state has trouble finding primary treating physician

This is a non published case of the Court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to her back in 2000. She had back surgery in 2004 which was unsuccessful. She has been unable to work since and has chronic pain 24 hours a day.

The applicant moved to Maryland. The applicant was declared permanent and stationary, but needed further medical treatment.

The applicant who was in pro per had difficulty finding a treating physician that would treat her under the California Workers’ Compensation guidelines.

The appellate court looked at Labor Code sections 4600 and 4610. They indicated the applicant did not comply with Labor Code section 4600, and therefore denied the defendant the utilization review process of Labor Code section 4610.

The appellate court was frustrated with the case. “Frustration seeps from this record. The injured worker, the employer, and the judge have endured one fight after another, one hearing after another.” The appellate court left it by indicating it is up to the parties to find a new treating physician. They indicated the Workers’ Compensation Judge (WCJ) cannot come up with creative solutions to solve the issues within the confines of a highly regulated system in this case.

The case was remanded.


Payment of temporary disability for attending medical exam does not trigger 104 week cap rate

The applicant suffered a compensable cumulative trauma injury. The applicant continued to work unrestricted duties at the employer. The applicant was sent to a panel Qualified Medical Examiner (QME).

The employer paid the applicant temporary disability for attending the QME appointment on September 11, 2007.

The applicant continued working until he was taken off work. He started collecting temporary disability (TD) March 17, 2009. In September 2009, the employer discontinued TD claiming the two year statute of paying TD had been reached.

The applicant filed for a hearing and the Workers’ Compensation Judge (WCJ) found the payments commenced in 2007 and the employer could discontinue in 2009.

On petition for reconsideration the Workers’ Compensation Appeals Board reversed and indicated that attending a medical exam alone does not commence the payments of TD.

The appellate court agreed and stated this payment is more of a med-legal payment.


Non-Medical Provider Network physician reports are admissible

This case has already been the subject of two Workers’ Compensation Appeals Board en banc decisions. It has now been decided by the Court of Appeal.

Applicant was treating within the Medical Provider Network (MPN).  Applicant asked for a change of treating physicians. Applicant asked for a physician within the MPN. Applicant started treating with a physician not within the MPN.

The reports of the non-MPN physician were not admitted into evidence. This resulted in the two en banc decisions and this appellate case.

The court of appeal looked at Labor Code section 4616.6 and the Tenet/Centinela Hosp. Medical Ctr. V WCAB (2000) case.

They reviewed multiple sections of 4616.6 which deals with MPN physicians and procedures.   They indicate that the Legislature  did not intend to exclude all non-MPN medical reports pursuant to   section 4616.6.

They indicate that if the legislature would have intended to exclude reports  they would have said so. They did not exclude all reports.  The court of appeal also indicated that Tenet did not stand for that principle either.

Therefore, the reports are admissible.


The Workers’ Compensation Appeals Board approves a huge settlement for traumatic injury

This is a very significant case for workers’ compensation principles.

This newsletter usually only reports on cases decided in California. The content of this newsletter is to report on a reputed settlement of 8.9 million dollars by way of a structured settlement.

Apparently the applicant fell from a scaffold and his head struck the ground. He suffered a mild traumatic brain injury and a multiple personality disorder. The applicant was only 18 at the time of the injury. The applicant also experienced auditory hallucinations that included hearing human voices.

There were multiple diverse medical opinions. The applicant needed constant medical care and there was an issue of whether he would need home health care versus a rehabilitation facility.

The significant value of the case was in future medical care due to the applicant’s young age at the time of injury. The structure settlement was designed to pay money to a conservator for the applicant’s care.

In high value cases, structure settlements are a value to all parties.


The Workers’ Compensation Appeals Board Issued an EN BANC Decision on the Use of Non-MPN Physicians

This is a very significant case for workers’ compensation principles.

The applicant sustained injury to his low back and right hip. The applicant began treatment for the injury through the employer’s medical provider network (MPN). For no apparent reason and without following the procedures of the MPN the applicant switched treating physicians to a non-MPN physician.

At a hearing on issues of temporary disability and attorney’s fees the workers’ compensation judge (WCJ) deferred any issues involving the MPN. The WCJ rejected the defendant’s arguments that the non-MPN physicians were inadmissible.

Defendant filed a Petition for Reconsideration, which resulted in this EN BANC decision.

The WCAB decided that non-MPN treatment reports are inadmissible where unauthorized treatment has been obtained outside a validly established and properly noticed MPN because the non-MPN physician is not the primary treating doctor. Therefore, these reports were not admitted into evidence.

 

 Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602, NB 92660

Phone: 949 252-1300


The Workers’ Compensation Appeals Board (WCAB) Issued an EN BANC on Admissibility of Non MPN Reports

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant sustained an admitted injury to his back, right hip, and neck. The applicant was sent for medical treatment by the employer to the employer’s Medical Provider Network (MPN) physician. The applicant changed treating doctors at the request of his attorney. The new physician was not in the employer’s MPN.

The matter proceed to trial on the issue of temporary disability and the employer raised the issue of the MPN. The Workers’ Compensation Judge (WCJ) found the applicant temporarily disabled on the report of the non MPN doctor. The defendant alleged the non MPN reports were inadmissible.

The defendant filed a petition for reconsideration.

The WCAB reviewed the applicable statutes including Labor Code section 4616. The WCAB also reviewed current case law and concluded that admission of reports from non-MPN doctors where treatment was improperly obtained outside the MPN will not be admitted and can not be relied on.

==================

Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602 Newport Beach ca 92660

Phone: 949 252-1300


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