2010-EB-12 (2010). Amelia Mendoza vs. Huntington Hospital Permissibly Self-Insured; and Sedgwick Claims Management Services Inc.

CourtCalifornia
California Workers Compensation Decisions 2010. 2010-EB-12 (2010). Amelia Mendoza vs. Huntington Hospital Permissibly Self-Insured; and Sedgwick Claims Management Services Inc WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIAAMELIA MENDOZA, Applicant,vs. HUNTINGTON HOSPITAL, Permissibly Self-Insured; and SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. (Adjusting Agent),Defendant(s).Case Nos. ADJ6820138 ADJ6820197OPINION AND DECISION AFTER REMOVAL AND ORDER ADMITTING DOCUMENTARY EVIDENCE (EN BANC)We granted the petition for removal filed by applicant, Amelia Mendoza, by and through her Guardian Ad Litem and Trustee, Rafael Mendoza. Thereafter, to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision(fn1) on the issues of: (1) whether Administrative Director (AD) Rule 30(d)(3)(fn2) is invalid because it is inconsistent with Labor Code sections 4060(c), 4062.2, and 5402(b);(fn3) and (2) if it is invalid, whether sections 4062 and 4062.2 place any time limits on when a defendant may commence the process for obtaining a section 4060 report on compensability. As relevant here, Rule 30(d)(3) provides that "[w]henever an injury or illness claim of an employee has been denied entirely by the [defendant], only the employee may request a panel of Qualified Medical Evaluators as provided in a sections 4060(c) and 4062.2." (Emphasis added.) Therefore, if Rule 30(d)(3) is valid, it would prevent a defendant that has already denied industrial injury from subsequently obtaining a qualified medical evaluator (QME) panel on the issue of compensability, i.e., medical causation, unless the Workers' Compensation Appeals Board (WCAB) later orders the Medical Director of the Division of Workers' Compensation (DWC) to issue a QME panel.(fn4) We hold that AD Rule 30(d)(3) is invalid because it conflicts with sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b). Neither section 4060 nor section 4062.2 provides that "only the employee may request" a QME panel after an employer has denied the compensability of a claimed injury. To the contrary, those sections when read together specifically provide that "either party" may make a QME panel request "at any time" after the filing of a claim form. Furthermore, nothing in section 5402(b) provides that a defendant must request a QME panel before it denies liability for an injury, even if that denial is based on medical causation grounds. We also hold that: (1) the time limits of section 4062(a) for objecting to a treating physician's medical determination do not apply when the injury has been entirely denied by the defendant; and (2) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability. I. BACKGROUND Based on the documentary evidence and the balance of the record, the relevant history is as follows.(fn5) Applicant worked as a patient case associate for Huntington Hospital (Huntington). On April 12, 2009, she allegedly suffered an industrial injury to her head, face and arms when an infectious disease patient in the pediatric unit bit her and slashed her with sharp fingernails. On April 14, 2009, she allegedly was attacked again by the same patient. On April 12, 2009, applicant was seen for an "[a]brasion" or "scratch l[ef]t arm" at Huntington's Emergency Department. She was discharged to "home" for "self care" with instructions to "go to employee health this week for a recheck." On April 20, 2009, applicant went to an industrial medical clinic for a recheck but she could not be seen at that time. About two and one-half hours later, she collapsed into a comatose state while eating at a restaurant. Since that time, her condition has not changed. She has been diagnosed as having had an intracerebral hemorrhage with severe neurological damage. She has minimal brain stem function and she has consistently been unresponsive to any stimuli. Applicant's claim forms for both alleged injuries were timely denied by Huntington's claims administrator, Sedgwick Claims Management Services, Inc. (Sedgwick). In denying the April 12, 2009 injury claim, Sedgwick alleged that its investigation did not support the claim of injury and there were no medical reports supporting the claim. In denying the April 14, 2009 injury claim, Sedgwick alleged that applicant did not work that day. Applicant designated Arthur Lipper, M.D., as her treating physician. Dr. Lipper authored two reports finding the injury industrial, including a report of August 27, 2009. The Report on Petition for Removal (Report) of the workers' compensation administrative law judge (WCJ), Judge Ralph Zamudio, states that applicant's attorneys served Dr. Lipper's August 27, 2009 report on Sedgwick at an incorrect P.O. Box address. On October 13, 2009, applicant's husband was deposed by defendant's counsel. Judge Zamudio's Report indicates that Dr. Lipper's August 27, 2009 report was personally served on defense counsel at that time. The Report further reflects that at the deposition defendant's attorney immediately objected to Dr. Lipper's opinion on industrial causation and began the medical-legal process under sections 4060 and 4062.2 by proposing an agreed medical evaluator (AME). A priority conference on industrial injury was held before Judge Zamudio on October 21, 2009. Applicant argued that the matter should be set for trial on the threshold issues of industrial injury and employment. Applicant asserted that, under AD Rule 30(d)(3), defendant was not entitled to a panel QME report because it did not obtain one within the 90-day period for denying liability under section 5402(b). Defendant responded that not only did it dispute medical causation, but it also disputed injury on non-medical grounds because: (1) the April 12, 2009 incident did not cause applicant to lose time from work and did not involve treatment beyond first-aid and, therefore, there was no "injury" under sections 3208.1(a) and 5401(a); and (2) applicant was not working on April 14, 2009. Further, defendant said that it had not yet requested a QME panel from the Medical Director only because it had proposed an AME on October 13, 2009 and the 10-day waiting period of section 4062.2(b) had not yet lapsed. At the October 21, 2009 hearing, Judge Zamudio granted a continuance over applicant's attorney's objection. Judge Zamudio concluded that defendant had timely denied applicant's April 12 and 14, 2009 injury claims and, therefore, the injuries were not presumptively compensable under section 5402(b). Also, Judge Zamudio concluded that because applicant's attorneys served Dr. Lipper's report(s) on Sedgwick at an incorrect address, defendant timely commenced the AME/QME panel process at the October 13, 2009 deposition. Judge Zamudio determined that unless the parties reach agreement on an AME, defendant is entitled under sections 4060 and 4062.2 to obtain a QME panel from the Medical Director on the issue of compensability.(fn6) Applicant filed a timely petition requesting that the Appeals Board remove this matter to itself under section 5310 and WCAB Rule 10843. (Cal. Code Regs. tit. 8, § 10843.) Applicant's petition contends that Judge Zamudio should have set these matters for trial because: (1) AD Rule 30(d)(3) provides that "only the employee may request" a panel QME where injury has been denied; and (2) Dr. Lipper found her claims to be compensable and defendant did not timely object to Dr. Lipper's report within 20 days of receipt, as required by section 4062. Applicant further contends there is substantial evidence that applicant's injuries are industrially caused and, therefore, defendant should be sanctioned for a bad-faith denial of her injury claims. Defendant filed an answer. Judge Zamudio's Report recommended denial of the petition. In his Report, Judge Zamudio states that Rule 30(d)(3) is "wholly inconsistent with the statutory scheme set forth in ... sections 4060 and 4062.2" and that Rule 30(d)(3)'s "attempt to invoke or apply a presumption of compensability under ... section 5402 where none exists ... clearly ignore[s] the plain language of [the] statute." Judge Zamudio further states that "[s]uch [an] unsupported regulatory limitation on an employer's access to medical-legal evidence is ... unenforceable, and a denial of due process." After granting removal and...

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