Labor Code §4061 and §4062 place some limitations on the parties who seek to object to the treating physician’s reports. Labor Code §4062(a) states that if either the employee or employer wishes to object to a medical determination made by the treating physician concerning the permanent disability status of an employee, then that party, “shall notify the other party in writing of the objection within twenty days of receipt of the report...” This assumes that the applicant is represented by an attorney. If not, the applicant has thirty days within which to object. Arguably, this is extended five days if the report is received in the mail by the Code of Civil Procedure. Therefore, the applicant’s attorney would have only twenty-five days after receipt of the treating physician’s P&S report to make an objection in writing. If this procedure is not

After the objection is given, there must be an attempt to go to an AME. “If no agreement is reached within ten days, or any additional time not to exceed twenty days agreed upon by the parties...” then the applicant’s attorney would be entitled to a QME evaluation. Please note that there is no provision for a new designation under Labor Code §4600 if the treating physician has already found the applicant permanent and stationary.

By way of reminder, if the employer is seeking to object to the treating physician’s report, the employer similarly only has 25 days from receipt of the treating physician’s P&S report within which to object to that report. After that time period, no additional reports are allowed, except for a showing of good cause. I would think that a showing of good cause would be very restricted. Therefore, it is very important to pay attention to the permanent and stationary reports of treating physicians once they are received.

Unlicensed Attorneys May Not Receive Attorney Fees for Representing Injured Workers

.J. Longval (“Longval”) represents applicants for workers’ compensation benefits before the Workers’ Compensation Appeals Board (“WCAB”). Longval is not licensed to practice law, but states he is a member of the North Carolina State Bar and an inactive member of the bar in the Territory of Guam.

Beginning in 1993, Longval represented Luis Chavez for a work-related injury. Longval requested $3,263.40 in attorney’s fees. However, this was denied by the WCJ, citing Labor Code sections 409(a) and 5710(b)(4).

Later, Longval petitioned for attorney’s fees which had been withheld from VRMA payments. The WCJ denied these, as well. Longval filed a petition for reconsideration, which was denied. A petition for writ of review was filed.

The Court of Appeal noted that, effective January 1, 1992, attorney fees are only to be paid “if represented by an attorney licensed by the State Bar of this state.” Essentially, Longval wanted to have the Labor Code sections dealing with this found unconstitutional.

The Court of Appeal noted that there was a public policy of preventing workers’ compensation fraud by reducing the number of fraudulent claims filed. The Court noted that the Legislature rationally removed the financial incentive for lay representatives in its efforts to control fraudulent claims. Further, there was no fundamental right for Longval to appear before the WCAB and receive compensation for his services. The law was not arbitrary but a valid exercise of police power to eliminate fraudulent claims for the public good.

The Court of Appeal stated that the sections in question do require that attorneys be licensed by the State Bar of California. While Mr. Longval held licenses from other states, it was necessary for him to obtain a license in California before he was entitled to payment.

M.J. Longval v. WCAB, 96 D.A.R. 15047, Wednesday, December 18, 1996.

Insurer’s Exclusive Remedy for Alleged Fraud Is the Workers’ Compensation Appeals Board

merican International Adjustment Corporation (“American”) filed a complaint against various medical clinics owned and controlled by Dr. Byron Crawford. American alleged that Crawford fraudulently billed for unnecessary medical services for a total of $519,369. The fraudulent billing presumably occurred over a four-year period.

The complaint contained general allegations of double-billing, unrendered or unauthorized medical services, fraudulent diagnoses, and premature medical-legal evaluations that were performed before the employer had received notice of the industrial claim and had an opportunity to respond to it. American sought compensatory and punitive damages and injunctive relief.

At the same time American filed its complaint, it also filed an ex parte application for a preliminary injunction to freeze the medical clinic’s assets and to have a receiver appointed. A TRO issued, freezing the assets in question. When the matter came for hearing, the TRO was dissolved. The judge accepted the medical clinic’s responses as a demurrer. The judge granted the demurrer and imposed sanctions under C.C.P. §128.5, totaling $62,074. American appealed and the medical group requested an additional $68,000 for costs and attorneys’ fees, claiming that the appeal was frivolous and vexatious.

American argued that workers’ compensation remedies are toothless since they will exempt a medical clinic from the bite of punitive damages and other tort remedies. However, the Court of Appeal noted that Penal Code §550 makes it a crime to submit false workers’ compensation claims and Labor Code §3820(d) imposes civil penalties up to $5,000, plus treble damages for knowingly submitting false or fraudulent written or oral material statements in support of compensation claims. For the same offenses, Insurance Code §1871.4 prescribes punishment of up to five years in prison, as well as a fine of the greater of double the amount of the fraud or $50,000, as well as restitution, “including restitution for any medical evaluation or treatment services obtained or provided.”

The Court of Appeal held that the exclusive jurisdiction of the Workers’ Compensation Appeals Board is not limited to employees and employers, but extends to all suits over compensation and payment of benefits to injured workers. The judgment of dismissal on demurrer was affirmed. The order granting sanctions was reversed and the motion for sanctions on appeal was denied. American was allowed its costs on appeal.

American International Adjustment Co. v. Byron Crawford, et al., 97 D.A.R. 423. Daily Appellate Report, Monday, January 13, 1997.

City of Moorpark V. Superior Court of the County of Ventura Part II

heresa Dillon worked for the City of Moorpark (“City”) as an administrative secretary. She suffered a work-related injury to her knee and filed a workers’ compensation claim. After Dillon recovered from knee surgery, her doctor released her to work in February 1994. However, she was informed by her supervisor that she had been terminated from her employment.

In March 1994, Dillon informed City that she would like to have her job back. She told City she would be able to do her work if City made certain accommodations. Dillon was once again informed that City would not rehire her.

Dillon filed a charge of discrimination with the California Fair Employment and Housing Administration (“FEHA”). The Commission later sent a right-to-sue letter to Dillon, who then filed an action against City and two former supervisors, alleging discrimination because of her physical disability, wrongful termination, breach of implied-in-fact contract of employment and infliction of emotional distress. City filed demurrers which were overruled as to the causes of action for discrimination and wrongful termination. City then filed a Petition for Writ of Mandate.

The Court of Appeal specifically stated that they disagreed with the recent decision of the District, Cammack v. GTE Corp., 48 Cal.App.4th 207 (61 CCC 760). The Cammack court concluded that Plaintiff’s FEHA discrimination claim arising out of a work-related injury was preempted by the California Workers’ Compensation Act. The Court then went on to explain their position.

The Court stated that a judge may not rewrite a statute, neither to enlarge nor to contract it. The Court noted that a plaintiff has a right to jury trial, as well a right to claim for lost wages, pain and suffering, and punitive damages. None of these are allowed in the workers’ compensation claim.

The Court went on to examine the purpose of the FEHA laws. The potential for a larger award of monetary damages, according to the Appeal Court, means greater protection of victims’ rights. Since tort law is primarily designed to “vindicate social policy,” there was a social benefit from allowing suits under the FEHA laws.

The Appeal Court held that the injured worker may proceed with either a 132a claim or an FEHA claim. Presumably, there is nothing preventing an injured worker from pursuing both claims at the same time. The Court of Appeal then ordered the matter back to trial level for further proceedings consistent with their opinion.

City of Moorpark v. Superior Court of the County of Ventura, 61 CCC 963, Court of Appeal, Second Appellate District, Division Six.