Parker, Kern, Nard & Wenzel
Legal Updates

The Navarro Effect

Robert L. Cassio

Most of us have encountered cases in which the applicant has filed multiple claims. Even more common is the factual situation in which an applicant has multiple claims involving the same body part, same employer, and same parties. The recent case of Navarro v. City of Montebello, 79 CCC 418, dealt with these issues. In Navarro, the applicant had alleged a cumulative trauma through February 9, 2009 and was seen by a Panel QME. Subsequent to that Panel QME evaluation, the applicant filed additional Applications for Adjudication of Claims alleging additional injuries of June 2010 and August 2010. In all of the claims, the applicant was claiming an injury to his back along with other body parts.

The defendants petitioned to compel an evaluation of the applicant’s two subsequent claims of injury by the original QME. The matter was submitted for decision and the WCJ found that the applicant was entitled to a new Panel QME and that Rule 35.5(e) did not apply. (See Navarro 79 CCC at page 421.) Rule 35.5 essentially indicates that in the event of a new injury or illness being claimed which involves the same type of body part or body system and the same parties that the parties shall utilize, to the extent possible, the same evaluator who reported previously. (See 8 CCR 35.5(e).) The defendant ultimately filed a Petition for Removal and the Workers’ Compensation Appeals Board, En Banc, eventually issued its findings.

After reviewing the pertinent statutes, the WCAB noted that the Labor Code required all medical-legal evaluations be obtained as set forth under Labor Code Section 4062.1 or 4062.2 and that the Labor Code requires an evaluator to discuss all medical issues arising from all reported claims of injury at the time of evaluation. (See Navarro 79 CCC at page 425.) The Court further noted that the Labor Code generally requires an employee to return to the original evaluator when a new medical issue arises on the same claim of injury and when the employee re-opens the same claim. (Ibid.) However, based on the Court’s analysis and review, they saw no provision in the Labor Code that required an employee to return to the same evaluator for a subsequent claim of injury and they saw no provision that distinguishes between procedures for evaluation of claims of injury based on the same or different body parts. In the end, it was concluded that the Labor Code does not require an employee to return to the same evaluator for a subsequent claim of injury. (Ibid.)

The WCAB also concluded that Rule 35.5(e) imposed an unwarranted limitation on the Labor Code and was invalid to the extent that it imposed an additional requirement that an employee return to the same evaluator when a new injury or illness is claimed. (See Navarro 79 CCC at page 427.)

The Navarro case may have some undesirable consequences which were acknowledged by the Navarro Court. (See Navarro 79 CCC at page 428.) In short, we have already seen situations in which an applicant was dissatisfied with a Panel QME’s findings which led to an applicant filing a subsequent cumulative trauma injury and requesting a subsequent Panel QME. This is going to lead to contradictory medical opinions and no doubt additional litigation. The Navarro Court did indicate that the parties could, of course, agree to go back to the original Panel QME, but that seems unlikely in a situation when one party is dissatisfied with the original Panel QME’s findings. There was also some speculation that the Navarro case would encourage the parties to go to an Agreed Medical Evaluator. However, there is at least one panel case which indicates that the reasoning of Navarro most likely applies to Agreed Medical Evaluators, as well. (See Panel Decision Norwood v. San Francisco Municipal Transportation Agency.)

As it stands now, the parties should be prepared for multiple med-legal evaluations if there are subsequent injuries to the same body parts being claimed. Be sure to have the medical record prepared and ready to be reviewed by the subsequent med-legal evaluator. In addition, it does not appear that there is anything preventing a party from sending the applicant back to the original Qualified Medical Evaluator to see if there has been a change in the applicant’s condition since his or her last evaluation. (Or to determine whether the applicant’s current claim is a result of the natural progression of the original injury.) One should also be prepared to ensure that each med-legal evaluator has the benefit of reviewing the other’s reports.

In the end, it will be interesting to see what effect the Navarro case has on litigation. In the interim, it certainly appears that med-legal costs will be on the rise!