When an applicant refuses to attend a medical evaluation, one of the more straightforward statutes in the Labor Code allows for the court to suspend a case and bar an applicant’s right to benefits.

John P. Kamin

Labor Code Section 4053 offers one of the more extraordinary remedies in workers’ compensation when applicants begin obstructing discovery. The statute says, “So long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.”

How it can be used

This statute can be used to request suspension of a claim when an applicant skips a QME or AME evaluation. This happens quite frequently in the workers’ compensation system for one reason or another.

Most of the time, this is not by a deliberate act from the applicant’s attorney. Usually, applicants' attorneys are pretty good about sending out notices of upcoming evaluations and telling their applicants to attend.

When the applicant fails to attend a med-legal evaluation, a defendant will usually file a petition to compel the applicant to that evaluation. If the court grants an order to compel and the applicant still fails to attend the QME evaluation, then the defendant would be well served to file a petition to suspend the claim and bar benefits under LC 4053. (To put applicant’s attorney on notice, I often mention this at the end of my petitions to compel.)

On occasion, some applicants’ attorneys may instruct an applicant not to attend if there is a dispute about the QME/AME evaluation. When disputes like this arise, it is still worthwhile to file a petition to compel the applicant to the evaluation, and plead LC 4053 when appropriate.

Prison

In rare cases, sometimes an applicant with an accepted case may be going to prison for a felony conviction unrelated to the workers’ compensation case. In those situations, defendants paying TTD would want to first get an order suspending TD benefits and also get an order suspending the case until applicant gets out of prison. Obviously, an applicant cannot leave prison for a medical evaluation, so a suspension of benefits is certainly appropriate in this scenario.

Misconception

The most common misconception about the statute is that it allows defendants to request dismissal when an applicant misses one or more depositions. Please note that the statute does not mention depositions, only medical examinations.

To my knowledge, there is no statute allowing for dismissal simply because applicant skipped a deposition. Instead, the defendant’s remedy is a petition to compel applicant to attend the deposition.

If the applicant keeps skipping depositions despite an order to compel, other remedies may include a petition for dismissal of inactive case, a petition for sanctions and costs per LC 5813 or even a petition for a finding of adverse inference.

Conclusion

So if you are a defendant whose applicant keeps skipping QME or AME evaluations, slam the brakes on the case with a petition for suspension of benefits per LC 4053. And please remember to include a proposed order for your friendly local workers’ compensation judge. This makes their lives easier.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.