Injuries occurring after January 1, 1991 are subject to the QME process. Specifically, Labor Code §4061 comes into play. For injuries occurring after January 1, 1994, the treating doctor’s report can be used for rating purposes and settlement. If an agreement isn’t reached on the treating physician’s report, the applicant is to be advised of his or her right to request a panel of three QME’s.

For unrepresented employees having injuries occurring after January 1, 1991, and before January 1, 1994, there really isn’t any provision for settlement based upon the treating physician’s reports. However, it has been my experience that many times the workers’ compensation judges will approve settlements based upon the treating physician’s reports regardless of the lack of a statute specifically authorizing such a settlement.

The employer is significantly restricted as to what contacts can be made with a panel QME. Labor Code §4062.2 provides that the QME can only be contacted by the employer in writing. The writing must be copied to the unrepresented employee. The employee is not under a similar restriction.

Any documentation which the employer wishes to send to the QME must be sent directly to the uninjured employee can object to any nonmedical records being

However, the rules of contacting the QME essentially change after the summary rating determinations have been received. As of 1995, Administrative Rule §10164 provided that neither party was to communicate with the QME once the summary rating determinations were issued. I guess this provision proved to be hard to enforce. The section was then amended in 1995. The section now provides that no consideration can be given to supplemental or follow-up evaluations which were requested by either party after the summary rating determination was issued. See Administrative Rule §10164(b).

What usually happens is that the parties receive the QME report. Many times problems with reports are not particularly clear from the report itself. Therefore, no one requests a supplemental report at that time. Later, after receiving the summary rating determinations, it becomes clear that a problem with the report exists because of an interpretation given to the report by the rater that no one expected. The employer requests a supplemental report from the doctor for clarification. The supplemental report is then inadmissible for review by the Administrative Director upon request for reconsideration of the summary rating determination.

Section 10164 only allows for a Petition for Reconsideration of the summary rating. The Petition is not on a traditional Petition for Reconsideration form. It is on a special DEU Form 103 which goes directly to the Administrative Director. The issues for reconsideration are extremely narrow. The Administrative Director is allowed to review the report only to determine one of the following issues: did the QME fail to address all issues, did the QME fail to completely address issues, was the IME procedure not followed by QME, or was the rating incorrectly calculated. The Administrative Director is not going to consider at all that the doctor has decided to change his opinion in a supplemental report clarifying what he meant to say at an earlier date. Incidentally, this “Petition for Reconsideration” has to be filed within 30 days of receipt of the summary rating determination. If such a Petition is not filed with the Administrative Director within the 30 day time period, any objection to the rating is waived.

The decision of the Administrative Director can be appealed. This is done by filing an application or DOR with the WCAB. However, since the issues of the review are extremely narrow, most probably such an application or DOR will not result in any benefit to the appellant.

There is no mechanism for the employer to obtain a rebuttal report to a QME report which the unrepresented employee obtains. Whether the lack of mechanism can successfully withstand a constitutional challenge based on a “due process of law” argument is still to be determined. For the time being, it is prudent to assume that a QME’s report for an unrepresented employee is pretty much the end of the litigation process.

The following is abundantly clear in considering the foregoing statutes and regulations. Once a QME report is received, it should be carefully reviewed as soon as possible. The summary rating is presumably to be given within 20 days after the QME report is issued. This gives you very little time to obtain a supplemental report from the QME. Such a supplemental report is admissible and must be considered by the Administrative Director if obtained prior to the summary rating determination being issued to the parties. It is therefore critical that the employer receive and review the QME report as quickly as possible and determine whether or not clarification is needed from the QME.

Newspaper Carrier Found to be Employee Despite Contract Stating Status was Independent Contractor

he applicant was working as a newspaper carrier delivering papers when he became involved in a traffic accident. He sustained injuries to his back, pelvis, head, knee and lower extremities. The applicant had worked as a newspaper route carrier from 1986 to 1993 for Investor’s Business Daily (IBD).

The applicant claimed employee status. The employer countered with the defense of independent contractor status.

On September 20, 1988, applicant had signed a contractual agreement with IDB entitled, “Investor’s Daily Independent Carrier Agreement”. It was a fill-in-the-blanks form contract written in English. The agreement provided, in part, “It is the specific express intention of the parties to establish in this agreement the relationship of independent contractor and contractee. The parties expressly disavow any intention to create or establish by this agreement the relationship of franchisor and franchisee or employer and employee....The carrier is free to deliver other publications, so long as such delivery does not interfere with the carrier’s ability to fulfill his/her commitments herein.” The applicant was also obligated under the contract to bear all operating costs, including taxes, and to furnish his own supplies and vehicle. IBD only furnished rubber bands and plastic wrappers.

The contract additionally specified that either party could terminate the agreement by giving two weeks’ written notice. If IBD did not give such notice, it was obligated to pay two weeks of compensation to the applicant.

The applicant was paid biweekly at a flat rate per each route delivered per day. For the period of December 1992 through May 1993, the applicant received biweekly compensation ranging from between $462.00 and $680.00.

The applicant stated that he did not understand the language in the contract. He was fluent in Spanish. He understood limited English and could not read English at all. The applicant acknowledged that he knew he could be fired with two weeks’ notice. He also knew that he had to provide his own truck, gas, insurance, repairs and maintenance fees. He acknowledged that IBD did provide him with bags for the papers.

The case went before workers’ compensation Judge Castranova. Judge Castronova found the applicant to be an employee. A Petition for Reconsideration was filed. This was granted. The WCAB returned the matter to the WCJ for further proceedings with a “more exacting analysis of the facts.” The WCJ again found the applicant to be an employee. A Petition for Reconsideration was filed. However, this time, the WCAB merely granted the Petition for Reconsideration and determined that the applicant was an independent contractor.

A Petition for Writ of Review was filed.

The Court of Appeal Second Appellate District noted that the WCAB placed greatest reliance on the case State Compensation Insurance Fund v. Brown, 60 CCC 91. That case involved truckers who picked up coal from railroad cars and then delivered it on behalf of a retail coal dealer. In that case, the truckers were found to be independent contractors.

The Court of Appeal stated that the WCAB was incorrect. “There is a quantum leap between these truckers and the individuals who deliver newspapers. In this age, most employees utilize automobiles and such vehicles are not specialized equipment. A trucker who owns his truck not only needs a special class of driver’s license but must learn many special driving skills. The investment in a truck is far greater than an investment in a car. No special skills or experience are required to deliver newspapers.”

The appellate court cited the case S.G. Borello & Sons, Inc., v. Department of Industrial Relations, 54 CCC 80. The Court noted that the newspaper delivery contract had not been negotiated. There was no evidence showing that the contract had been read verbatim to the applicant. In view of the totality of the circumstances surrounding the work relationship, the agreement amounted to a subterfuge to avoid the workers’ compensation laws of California. The Court reversed the Board’s decision granting the Petition for Reconsideration. The Board was ordered to sustain the applicant’s claim for benefits.

Jesus Eduardo Gonzalez v. W.C.A.B., 61 CCC 566

Contribution Statute of Limitations

n January 23, 1990, Patricio Loterstein sustained an admitted work-related injury from a continuous trauma commencing August 1, 1989. General Accident Insurance Company (“General”) provided workers’ compensation coverage to the employer from September of 1988 through December 18, 1989. Fireman’s Fund Insurance Fund (“Fireman’s”) provided coverage for the same employer from December 22, 1989 through December 2, 1990. The applicant only brought a claim against Fireman’s. The case was settled by way of Compromise and Release Agreement on February 25, 1991.

On February 20, 1991, a claims person from Fireman’s called a claims person at General. They discussed contribution toward the settlement. The representative from General stated that General would have to be joined before it would consider any contribution. General was then joined at the request of Fireman’s on March 15, 1991.

Approximately one year later, Fireman’s sent General a letter itemizing the medical and legal costs it had paid. The letter requested contribution. Various additional letters were sent over the next year and a half. General’s only response was to inform Fireman’s that its requests were being forwarded to its Northern California office. Apparently, nothing else occurred at that time.

In January of 1994, Fireman’s did file an Application for Adjudication of claim on the issue of Contribution. General raised the issue of statute of limitations. The matter went before the workers’ compensation judge. The judge found that the contribution claim was timely made. A Petition for Reconsideration was filed. The WCAB denied the petition and incorporated the WCJ’s report and recommendation. A Petition for Writ of review was filed.

The Court of Appeal determined that Labor Code §5500.5(e), the one year statute of limitations regarding contribution, is not satisfied by the mere joinder of another party or carrier subsequent to the approval of a compromise and release. A separate supplemental proceeding must be instituted.

Fireman’s argued that General should be estopped from raising the statute of limitations issue. Fireman’s argued that it reasonably relied upon the oral representations made by General employees. However, the Court of Appeal noted that the communications in this case were between experienced employees of two licensed insurance carriers. The case was ordered back to the WCAB where the WCAB was directed to enter an order dismissing Fireman’s contribution claim as barred by §5500.5(e).

General Accident Insurance Company v. WCAB

96 Daily Journal D.A.R. 9063 (1996)