The WCAB has recently issued its en banc decision on the case of Mendoza v. Huntington Hospital. The case has beneficial effect for employers and carriers. The issue in Mendoza was whether the defendant could request a panel of Qualified medical Examiners after it had denied compensability of the entire claim. Another issue addressed was whether the time limits to object to primary treating physician opinions under Labor Code §4062 are to be strictly adhered to in a denied claim.
First, the WCAB addressed 8 CCR §30(d)(3) which allows that when a claim has been entirely denied, “only the employee” may request a panel of Qualified Medical Evaluators. The Board determined that 8 CCR §30(d)(3) conflicts with Labor Code §§4060(c) and 4062.2.
Labor Code §4060(c) indicates that “[i]f a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Labor Code §4062.2.”
Labor Code §4062.2 provides that either party may initiate the process of selecting an agreed medical examiner by proposing at least one doctor to the other side, in writing. If the parties cannot agree on a doctor within 10 days, then either party may request a list of panel QME’s. The words “at any time” as used in Labor Code §4060(c) and “either party”as in Labor Code §4062.2 appear inconsistent with the rule of 8 CCR §30(d)(3) which would allow only the applicant to request a panel after the claim is denied. The WCAB pointed out the inconsistency and invalidated 8 CCR §30(d)(3). Additionally, the WCAB pointed out that Labor Code §5402(b) does not require a defendant to request a panel QME before denying liability for an injury, even if such denial is based on medical grounds.
Finally, the Board addressed the issue of whether the 20 day time limit to object to the primary treating physician’s opinions per Labor Code §4062 applied. The WCAB pointed out that the medical-legal process for denied cases is governed by Labor Code §4060, not §4062. Labor Code §4060 directs the process to proceed under Labor Code §4062.2 which has no time requirements. Labor Code §4062 and its 20 day time period to object never applies in a denied claim.