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Grinberg: Medical Exam Sufficient to Proceed to Trial

  • State: California

Awhile back, I asked questions (as I often do) about Labor Code section 4061(i): How does this work?

Section 4061(i) provides, after all, that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [declaration of readiness] unless there has first been a medical evaluation by a treating physician and by either an [agreed medical evaluation or qualified medical evaluation].”

So what does it mean?

One panel decision held that failure to object to the DOR citing 4061(i) waives the objection. But now another, Bustos v. WCAB/Randstad Placement Pros, a writ-denied case, holds that an evaluation is enough. The fact that the treating physician has declined to address permanent disability (or find applicant permanent and stationary) is not good grounds to hold off trial or close discovery.

In Bustos, the applicant was examined by her primary treating physicians, but they never addressed PD. Meanwhile, her panel-qualified medical evaluation had found her permanent and stationary, and expressed an opinion as to her PD level. 

Applicant sought reconsideration, arguing that defendant’s DOR was defective because it had not complied with 4061(i). However, in affirming the workers' compensation judge, the Workers' Compensation Appeals Board concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary, and the PQME who did. The WCJ found the PQME more persuasive, and thus the matter properly proceeded to trial.

As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial. It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).

However, what if the pieces on the game board were flipped — if applicant’s PTP had found her permanent and stationary, but the PQME had not? Could one party force a trial at that point? I think so.

Now here’s another question: Let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating. Would that report provide good cause to reopen for new and further disability?

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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