Employment Law Client Alert: WCAB Declares Regulation Invalid While Clarifying Medical Legal Process

In Ismael Navarro v. City of Montebello, February 27, 2014, (Navarro) the WCAB declares its intention to invalidate the administrative regulation requiring 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. The WCAB en banc issued a Notice of Intention to Submit for Decision a finding that the injured worker did not need to return to the same Panel QME utilized in his previous cases.

Navarro suffered three industrial injuries while serving as a police officer with the City of Montebello. As a result of his first injury, Navarro claimed to have sustained a continuous trauma to his back and ear from February 9, 2008 to February 9, 2009. Under the provisions of California Labor Code Section 4062.2, Navarro was evaluated by a Panel QME for this injury. Almost 2 years after making his first claim, Navarro filed a second claim for a specific injury to his back and lower extremities. Even later, he filed his third claim in which he sought benefits for a specific injury to his back and left leg. The defendant petitioned to compel Navarro to be evaluated for the compensability of his second and third claims by the same Panel QME who saw him for the first injury. The WCJ denied the request and found that Navarro was entitled to a new Panel QME for the later cases.

In its decision the WCAB acting en banc declared its intention to sustain the WCJ ruling and, in so doing, to invalidate California Code of Regulation §35.5(e). 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 concluded that since the operative date for initiating a claim under Labor Code §5401 is the date the claim form is received by the employer, then ‘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 to utilize the same medical evaluator if a new medical issue arises after the original evaluation of the same injury, but it does not provide for that direction for subsequent claims of injury. In reaching its conclusion, the WCAB noted that its ruling would contradict California Code of Regulations §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 exercised 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 held it to be impermissibly inconsistent with the Labor Code.

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March 3, 2014