Yee-Sanchez v. Permanente Medical Group, 042903 CAWC, OAK 271713

Case DateApril 29, 2003
CourtCalifornia
DONNA YEE-SANCHEZ, Applicant,
v.
PERMANENTE MEDICAL GROUP, and ATHENS ADMINISTRATORS (Adjusting Agent), Defendant(s).
NATALIE PIATT, Applicant,
vs.
EUREKA UNION SCHOOL DISTRICT; CALIFORNIA INSURANCE GUARANTEE ASSOCIATION on behalf of CALIFORNIA COMPENSATION INSURANCE COMPANY, in liquidation, Defendant(s).
Case Nos. OAK 271713, SAC 304854
Workers' Compensation Appeals Board State Of California
April 29, 2003
         OPINION AND ORDER DISMISSING PETITION FOR REMOVAL          OPINION AND DECISION AFTER RECONSIDERATION           William K. O'Brien, Judge          I.          Introduction          A.          These two cases present some common issues regarding: (a) what the parties and the Workers' Compensation Appeals Board ("WCAB") can and cannot do before an application for adjudication of claim ("application") has been filed; and (b) what the parties and the WCAB can do to remedy pre-application abuses once an application is ultimately filed. Because of these common issues, we have consolidated the two cases for purposes of issuing a joint opinion. (See Lab. Code, §133; cf., Cal. Code Regs., tit. 8, §§10590-10592.)          We conclude:
(1) Except for injuries sustained from January 1, 1990 to December 31, 1993, the WCAB has no jurisdiction over any aspect of a workers' compensation claim until an application for adjudication of claim (and not just a claim form) has been filed. (See Lab. Code, § 5500.) Therefore, prior to the filing of an application, the WCAB cannot conduct any hearings or issue any orders, and a party cannot invoke the WCAB's judicial process to conduct compelled discovery (e.g., noticing a deposition, subpoenaing a witness to a deposition, or subpoenaing medical records and other documents).
(2) Nevertheless, prior to the filing of an application (but after the filing of a claim form), the parties may engage in non-compelled pre-application investigation. Thus, for example, a defendant may request that an injured employee attend an examination by a qualified medical evaluator ("QME"), request that the injured employee execute a release of medical records, request that the injured employee provide various documents, or interview the injured employee or other potential witnesses. Similarly, an injured employee may request information from a defendant, or interview potential witnesses. If, however, a party or non-party fails to comply with any such request(s), the injured employee or defendant cannot seek to compel compliance unless an application has been filed.
(3) After an application has been filed, there are remedies potentially available to address pre-application abuses. These remedies might include: (a) monetary sanctions under Labor Code section 5813[1] against an injured employee or a defendant for unlawful pre-application discovery efforts (e.g., noticing a deposition, subpoenaing a witness to a deposition, or subpoenaing medical records and other documents); (b) evidentiary sanctions against an injured employee or a defendant for unlawful pre-application discovery efforts; (c) monetary sanctions under section 5813 against a defendant for breaching a statutory duty to file an application, pursuant to section 4061(m)[2] and section 4063; (d) section 4650(d) and/or section 5814 penalties against a defendant for delays in paying benefits occasioned by a failure to comply with a statutory duty to file an application; and (e) liability by the defendant for section 4064(c)[3] attorney's fees the injured employee may incur in connection with the application, if the defendant was the party that ultimately filed the application.
(4) A defendant is not required to file an application under section 4061(m) and section 4063 if it is paying permanent disability indemnity in accordance with the report(s) of either the treating physician, the panel QME, or the agreed medical examiner ("AME").
         B.          In Yee-Sanchez v. Permanente Medical Group (Case No. OAK 271713), defendant, Permanente Medical Group ("PMG"), filed a petition pursuant to section 5310 and Board Rule 10843 (Cal. Code Regs., tit. 8, §10843), requesting that the Appeals Board remove this matter to itself and rescind the May 10, 2002 order issued by the presiding workers' compensation administrative law judge ("PWCJ").          In that order, the PWCJ had directed PMG to file an application with the WCAB pursuant to the provisions of section 4061(1) [now, section 4061(m)] and section 4063, because PMG had not paid permanent disability indemnity in accordance with the report of John K. Hightower, D.C., the QME selected by the unrepresented injured employee, Donna Yee-Sanchez ("Yee-Sanchez"), from a three-member panel.[4]          In its petition for removal, PMG asserts, in substance: (1) it was not required to file an application, because it had paid permanent disability indemnity in accordance with the opinion of the treating physician, John Duong, D.C.; and (2) even if it were assumed that it had not paid permanent disability indemnity in accordance with Dr. Duong, it cannot be ordered to file an application.          In Piatt v. Eureka Union School District (Case No. SAC 304854), defendant, the California Insurance Guarantee Association ("CIGA"), filed a petition seeking reconsideration of the Findings and Order issued by the workers' compensation administrative law judge ("WCJ") on August 29, 2002. In that decision, the WCJ found that CIGA had engaged in bad faith actions or tactics that were frivolous or solely intended to cause unnecessary delay, and she imposed section 5813 sanctions of $500.00 against it. In her opinion, the WCJ stated that sanctions of $500.00 were imposed because CIGA had engaged in several "bad faith" or "frivolous" actions, including: (1) taking the depositions of the unrepresented injured employee, Natalie Piatt ("Piatt"), and of the panel QME, William C. McKean, D.C., before the filing of an application, which was necessary to invoke the WCAB's jurisdiction; (2) taking the deposition of the panel QME without first obtaining a WCAB order; (3) requesting a new panel QME without attempting to utilize the original panel QME to resolve the dispute; (4) unilaterally directing Piatt to be re-evaluated by the panel QME, without first filing an application and obtaining an order from the WCAB; and (5) attempting to have Piatt re-evaluated by the panel QME (or by a new QME) after trial, when discovery had closed.          In its petition for reconsideration, CIGA contends, in substance: (1) due process entitles a defendant to take the deposition of an injured employee following the filing of a claim form, and "[i]t is commonplace after a [claim form] is filed that depositions take place;" (2) there is no requirement that an application must be filed in order to have an unrepresented employee reevaluated by a panel QME; (3) section 4062 allows a defendant to object to a treating physician's determination regarding the extent and scope of medical treatment at any time during the life span of the injured employee's workers' compensation case, including when discovery has been closed after a mandatory settlement conference ("MSC"), because an objection under section 4062 is not an attempt to conduct discovery; and (4) there is no requirement that a defendant obtain a WCAB order before deposing a panel QME.          II.          Background          We shall turn initially to a pertinent history of each case.          A.          Yee-Sanchez v. Permanente Medical Group (Case No. OAK 271713)          Yee-Sanchez, who has never been represented by counsel, sustained an admitted industrial injury to her neck and right upper extremity on January 11, 1999 while employed by PMG. Although there is no claim form in the WCAB's file, it appears she filed a claim form with PMG shortly after her injury.          Dr. Duong was Yee-Sanchez's primary treating physician and, on October 19, 2000, he issued a "final comprehensive report" that found her to be medically permanent and stationary with various factors of disability.          PMG objected to Dr. Duong's assessment of Yee-Sanchez's permanent disability and requested that she select a panel QME. (See Lab. Code, §4061(d).) She selected Dr. Hightower from a QME panel and, on December 4, 2000, Dr. Hightower issued a report finding her to be medically permanent and stationary with various factors of permanent disability.          On December 14, 2000, the Disability Evaluation Unit ("DEU") issued a summary rating determination opining that the factors of permanent disability in Dr. Hightower's report rated at 66%. (See Lab. Code, §4061(j)[5].) ...

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