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