Client Update: One Month Later – WCAB Concludes Regulation is Invalid While Clarifying Medical Legal Process

In Ismael Navarro v. City of Montebello, April 2, 2014, (Navarro) the WCAB brings to a conclusion the decision making process it started with its February 27, 2014 Notice of Intention to Submit for Decision (see Haight Brown & Bonesteel alert of March 3, 2014). After reviewing requested supplemental briefs from the parties, the WCAB invalidates the administrative regulation that required an injured worker to return to the same Panel Qualified Medical Evaluator (QME) for the evaluation of a later injury involving the same part of body and the same employer.

Navarro sustained multiple injuries during his employment with the City of Montebello. After his first injury, he was evaluated by a Panel QME. The injured worker sustained two later injuries while working for the same employer. The City sought to have him return to the original Panel QME for evaluation of the later injuries, citing as authority California Code of Regulation §35.5(e). The City was not seeking to have Navarro re-evaluated for the original injury, but rather to have the doctor, who had information from the first QME evaluation, use that knowledge in an evaluation of the later injuries. However, the WCJ ruled that Navarro was entitled to a new Panel QME for the subsequent injuries.

In its two decisions the WCAB, acting en banc, sustains the WCJ’s decision and invalidates California Code of Regulation §35.5(e). The Board reasons that California Labor Code §§4060, 4062.1 and 4062.2 set out the procedure for obtaining a medical legal evaluation of the compensability of a claim. The Board noted that Labor Code §§4062.3(j) and 4064(a) require the evaluating physician to address all “medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee’s initial appointment with the medical evaluator.” The Board concludes that “it appears that the date of filing of the claim form determines which evaluator must consider which injury claim(s).”

Labor Code §4062.3(k) requires the parties utilize the same medical evaluator if a new medical issue arises after the original evaluation of a worker’s injury and relates to that injury. In Navarro, the WCAB determines that even though the same part of the body is involved, the statute does not require the injured worker suffering a second or later injury return to the QME who performed an evaluation of an earlier injury. The Board acknowledges that its ruling contradicts California Code of Regulation §35.5(e), which requires an employee to return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts. Accordingly, the WCAB exercises its jurisdiction to declare invalid any regulation that is in conflict with a statute. As §35.5(e) imposed an obligation on an injured worker that is not required by statute, the WCAB holds it to be impermissibly inconsistent with the Labor Code.

Some will likely see the holding as wreaking havoc on an already overburdened system. There is also no doubt that the Board’s holding will result in multiple medical legal opinions addressing the same parts of the body in some cases, which may result in contradictory medical opinions, and gamesmanship in pleading. The stage is now set for a situation that only the courts of appeal or legislature may correct.

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April 15, 2014