I have a case for an injury that occurred after 1/1/13. I understand that there was going to be a new Permanent Disability Rating Schedule (PDRS) for those claims, but nothing has been issued. If there is not, how do I rate the worker’s impairment?

For injuries on or after 1/1/13, you must refer to California Labor Code Section 4660.1 to determine a worker’s permanent disability. Subsection (b) requires that after incorporating the AMA Guides 5th Edition, multiply that whole person impairment by 1.4. However, if you read subsection (d), it states that, “Until the schedule of age and occupational modifiers is amended, for injuries occurring on or after 1/1/13, PD shall be rated using the age and occupational modifiers in the permanent disability rating schedule adopted as of 1/1/05.”

Therefore, and while I know some WCAB’s, such as Los Angeles apply the 1.4 pending the new PDRS, I recommend you rate it as if its a 1/1/05 DOI with the FEC adjustment pending release of the new schedule. While I do like the idea of using the 2005 PDRS and using a 1.4, unfortunately, I recommend against that as it does not appear to be consistent with the Labor Code.

A worker recently filed a cumulative trauma claim and he refuses to go to an appointment with a physician within the Medical Provider Network (MPN). What can I do to investigate whether the claim is industrial?

California Labor Code, Section 4060 is the section that must be applied when dealing with disputes involving the compensability of any injury. Therefore, if the claim involves an injury where a medical-legal evaluation is required, and the dispute is not based on a factual or legal dispute, the worker is required to attend a medical legal evaluation.

While some practitioners like to have the worker examined by a physician within the MPN and rely on that opinion, technically, the opinion of an MPN physician is insufficient. Certainly, if the opinion is from a well respected physician and the totality of the circumstances justifies no further action, in either accepting or denying the claim, there are times when the parties simply proceed based only on that medical opinion.

My recommendation is that if a medical legal opinion is required, and the worker is not represented, send the worker the paperwork necessary for him to obtain a panel QME. Frankly, if they take no action and you have no medical evidence to support their claim, as they have the burden to establish an industrial injury per Labor Code Section 3202.5, you should be able to deny the claim.

If they are represented, I recommend you request a panel of QME’s in compliance with Labor Code Section 4062.2. The faster you make the request, the faster your investigation is completed under Labor Code Section 5402, thereby allowing you to conduct that, and any other discovery, which will allow you to make comprehensive determination on AOE/COE without unnecessary delay and expense.

I have a worker that is permanent and stationary. I have sent her the Stipulations with Request for Award on numerous occasions, and she just ignores me. What action can I take to close the file formally or prevent her from coming back later making allegations that her condition is now worse or that I have not tried to settle her claim?

Well, assuming the worker has exhausted her remedies on medical issues, i.e. obtaining a Panel QME, the correct answer depends on if the jurisdiction of the WCAB has already been invoked. For example, if the worker, the employer or even a lien claimant has filed an Application for Adjudication, and a case number has been assigned, then I recommend you file a Declaration of Readiness to Proceed. You can either request a Status conference–if you are not ready to go to trial and simply want to see what needs to be done to either settle or take further action; or request a Mandatory Settlement Conference–if you are ready to go to trial if settlement is not reached. This way, you can have the parties come to the WCAB and discuss resolution of the case. This is something I do regularly for clients in such circumstances.

If the WCAB jurisdiction has not been invoked, the answer can be more involved. You will want to document all your efforts in attempting settlement with the worker. This will help respond to any issues that may arise in the future should the worker claim she was unaware of what her rights/options were. Also, you want to send the worker the appropriate notices regarding the claim, and especially the application of the statute of limitations. You want to make it abundantly clear that if she does not respond, you may be administratively closing the file and that she will have only a certain amount of time to file an application to invoke the WCAB jurisdiction or forever be barred from further pursuing her claim. While the statute of limitations many times is not correctly applied, or the wrong statute is applied, the more evidence you have that you have complied with law, the better chance you or your attorney will have in prevailing on this defense, if applicable, in the future.

Finally, and this is something I have done for many clients, I simply meet with the worker to discuss the Stipulations and what they mean to them. I answer any questions they may have and if warranted, refer them to the Information and Assistance Officer of the WCAB. Once they are put at ease as to what the documents mean and how they impact them, many times, they sign the stipulations and the matter comes to an end without the need for unnecessary or protracted litigation.