By Michel LeClerc

On Tuesday, July 7, 2009, the 3rd District Court of Appeal denied an employer's claim for temporary disability (TD) overpayment where the employer had failed to make a timely Labor Code 4062 objection to the treating physician's opinion on TD.

In J.C. Penney v. WCAB an AME found a retroactive permanent and stationary date 19 months earlier, resulting in a large
TD overpayment.  Employer sought credit for the TD overpayment from applicant's permanent disability award.  The workers' compensation judge (WCJ) denied the claim for credit on the grounds that employer had failed to timely object per Labor Code 4062 to any of the treating physician reports that certified the ongoing TD payments.

Employer petitioned for reconsideration arguing that the reports of the treating physician were not substantial evidence.  However, the WCAB agreed with the WCJ and denied the employer's petition for reconsideration.

The Court of Appeal granted the employer's petition for writ, only to reject the employer's arguments and agree with the Workers' Compensation Appeals Board (WCAB) legal analysis of Labor Code section 4062.  The court affirmed
that the purpose of Labor Code section 4062 is to cause the parties to promptly declare disputes of medical determinations so they can be promptly resolved.  In light of that purpose, the court wrote:  "If either employer or employee fails to raise a dispute about a medical determination within the ambit of section 4062 within the prescribed time, they may not attack that determination thereafter."


The Bottom Line:

Both employees and employers are well-advised to timely document all objections to medical determinations of treating physicians. The failure to timely object will later bar the offended party from challenging that determination, even where subsequent AME opinion conflicts with the opinion of the treating physician.

Per Labor Code 4062, an objection is timely if made within 20 days of receipt of the treating physician's report (30 days if the employee is unrepresented).  In all likelihood, a utilization review denial satisfies Labor Code 4062.  However, absent timely, written objection to a medical determination of TD or treatment, that determination becomes final.


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Michel LeClerc is a partner in the law firm of Hansen LeClerc LLP in Redding, Calif.
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