- Details
- Published on Thursday, 18 December 2014 11:31
Untimely Utilization Review Decision Deemed Invalid
Summary Written by Gregory Tanner
In an Opinion and Order Denying Reconsideration (Significant Panel Decision) in Timothy Bodam v San Bernardino Co. the Board held that utilization review decisions that are not timely communicated to the worker and treating doctor are invalid. Labor Code Section 4610(g)(3)(A) requires the payer to communicate the utilization review decision to the requesting doctor within 24 hours of the decision. The initial notification must then be followed up by written notice within two business days. Failure to meet these notice requirements allows the Board to decide the medical necessity of the requested treatment. Bodam taken together with Dubon II confirms that a utilization review decision must be made and communicated timely otherwise the decision is deemed invalid. Timothy Bodam v San Bernardino Co.
- Details
- Published on Thursday, 01 May 2014 11:31
An Employer can request a second medical evaluation of worker after FMLA Leave
Summary Written by Ralph Camastra
White versus County of Los Angeles, Nos. B24371 and 824-4798, April 15, 2014, published White, a Senior District Attorney investigator for the County of Los Angeles sought injunctive relief prohibiting the County from conducting a medical evaluation subsequent to her release to duty by her treating physician. The County sought this evaluation to determine her ability to return to work after her FMLA leave. The requested medical examination was based upon applicant's subsequent performance and evidence that she was not emotionally ready to return to her work.
The Second District Court of Appeals found that the County's request for reevaluation of White, four months after she returned to work, did not violate her rights under FMLA. FMLA permits an employer to appear for a second medical opinion, at the employer's expense, to determine whether the employee has a condition requiring an FMLA leave. However the court concluded this does not permit the employer a second opinion PRIOR to reinstating the employee.
The workers medical provider is to be considered conclusive as to whether the employee should be immediately returned to work but does not prohibit an employer from seeking a further fitness for duty evaluation after he or she is back to work. The Court further indicated that an employer may require a medical examination consistent with the guidelines and restrictions contained in the Americans with Disability Act if the exam is job-related and consistent with business necessity.
- Details
- Published on Thursday, 01 May 2014 11:29
Applicants Not Required to Return to Prior QME for Subsequent Injuries
Summary Written by Gregory Tanner
Navarro v. City of Montebello (Opinion and Decision After Removal; En Banc - 4/4/14)
Removal was granted on 2/27/14 to allow the parties and the DWC an opportunity to address issues raised in the proposed holdings regarding the Labor Code and Rule 35.5(e). The Board has reviewed the response of the defendant and has now issued its opinion and decision.
The Board concluded that the Labor Code requires that an evaluator discuss all medical issues arising from all reported claims of injury at the time of the evaluation. In addition, the Board concluded that the Labor Code requires generally that an applicant return to the original evaluator when a new medical issue arises in the same claim or claims of injury and when the applicant reopens the same claim. However, the Board also determined that an applicant is not required to return to the previous evaluator for new injuries reported after the examination had already occurred for the initial injury claim or claims. In Navarro, since the two new injury claims were reported subsequent to the 9/14/09 initial QME examination, the applicant was entitled to a new QME. In light of the holding, Rule 35.5(e) was deemed to be invalid and not supported by the statutory scheme.
- Details
- Published on Thursday, 01 May 2014 11:27
Hernia; Heart Trouble; Pneumonia
Presumptions
Synopsis by Larry Fields
§3212 Hernia; Heart trouble; Pneumonia
- Applies to: sheriffs, CHP, district attorney investigators and inspectors, peace officers, firefighters, Dept.of Forestry firefighters, Dept.of Fish & Game (active law enforcement). Excludes those whose duties are primarily clerical such as stenographers, telephone operators, office workers.
- The condition must manifest itself during the period of employment.
- Anti attribution clause. Hernia, heart trouble, or pneumonia shall in no case be attributed to any disease existing prior to that development or manifestation.
- Presumption extends following termination of service for 3 months for each year of work up to a maximum of 60 months or 5 years.
- Not subject to apportionment under §4663(e). In fact §4663(e) applies to §§3212 through 3213.2.
§3212.2 Heart Trouble
- Applies to Dept. of Corrections employees who have custodial duties and Dept. of Youth Authority employees having group supervisory duties, security officers of Atascadero State Hospital.
- Presumption extends following termination of service for 3 months for each year of work up to maximum of 60 months. Applies with the date actually last worked.
§3212.3 Calif. Highway Patrol Heart Trouble; Pneumonia
- Must have served 5 years as a peace officer as defined in Vehicle Code §2250.1(a).
- Presumption allowable up to 5 years after date last worked.
- Details
- Published on Thursday, 01 May 2014 11:17
Discovery of Witness Statements
Compiled by Larry Fields
Although the statutes governing discovery are intended to allow for as full an exchange of information, thereby "leveling the playing field" and to avoid "gamesmanship" or "surprise", it does not mean that there is an unfettered right of a party to discover witness statements obtained by the other party. The few cases listed below should give some guidance on this issue.
1. Chadhourne v. Superior Court (1964) 60 Cal. 2d 723
Facts: Plaintiff fell on a sidewalk partially constructed by an employee of defendant D.L Chadbourne, Inc. Plaintiff requested statements obtained by the investigator assigned by the insurance carrier. This was refused. The court stated the issue was whether the written statement of the employee, obtained by a representative of the insurance carrier and delivered to its attorney was protected from discovery under the attorney client privilege.
Holding: The first issue to deal with was the fact that the defendant was not a person and thus, since a corporation can only speak through its officers whether it has the same discovery protections as individuals. It held that the attorney client privilege equally applies to a corporation. Next, the employer relied on the case of Gene Compton's Corp. v. Superior Court 205 Cal. App. 365 for the holding that statements of employees concerning an accident, sent pursuant to the terms of an insurance policy to the employers carrier are privileged. The court seemed to indicate that this is too broad of a rule, but would certainly apply where the corporation required the employee to give a statement to its attorney. But this privilege may be waived by failure to maintain confidentiality depending if the statement is made in the presence of others who have no interest in the case, or where the attorney discloses the information. (McKnew v. Superior Court 23 Cal. 2d 58).