The Covid-19 pandemic and the new presumption regulations have dominated workers compensation headlines for the past several months. While the idea of a “presumption” is nothing new in the workers compensation landscape, we are reminded how critical it is to gather and proffer rebuttal evidence not only for presumptive issues, but all aspects of an injured worker’s claim.
REBUTTAL EVIDENCE IS A DUE PROCESS RIGHT
First. it is important to note that A WCJ is bound by the due process clause of the 14th Amendment to the U.S. Constitution to give the parties before it a fair and open hearing. A party also has a due process right to meet and rebut the evidence produced by his or her opponent as well as the right to cross-examination of the opposing witnesses. So, a party has a constitutional right to offer evidence in explanation or rebuttal.
Rebuttal evidence is generally defined as evidence produced by the opposing party and does not include mere cumulative evidence presented in the case-in-chief. Once the applicant and the employer have had an opportunity to present their case and defense, respectively, both parties also have an opportunity to present rebuttal evidence. It is important to remember that applicant bears the initial burden of providing injury AOE/COE and the nature and extent of benefits.
Normally, evidence produced at trial must be disclosed at the MSC to be admissible.
TYPES OF REBUTTAL EVIDENCE – DOCUMENTARY AND EXPERT EVIDENCE
TREATING PHYSICAN REPORTS (PR-4) V. QME/AME REPORTING
It is well settled that either party may object to a treating physician report and obtain a panel QME to address issues of compensability, permanent and stationary status, causation, and impairment. However, it is possible to obtain a PR-4 report in response to an unfavorable QME report? If so, can an applicant be compelled to attend a PR-4 evaluation?
When the primary treating physician determines that the employee’s condition is permanent and stationary, the physician must report any findings concerning the existence and extent of permanent impairment and limitations, and any need for continuing and/or future medical care, within 20 days from the date of examination unless good cause is shown.
In other words, the primary treating physician’s duties mandate they issue a PR-4 report when determined the applicant has reached permanent and stationary status.
The information may be submitted on the primary treating physician’s permanent and stationary report (form DWC PR-3 or form PR-4) contained in CCR 9785.3 or CCR 9785.4 or in any manner that provides all the relevant information above.
Thus, it would appear that either party could obtain a PR-4 report after the QME reporting if the treating physician had yet to issue a PR-4 report. It would be best practice to serve the PTP with the QME report for review and comment in the PR-4 report. In effect, this could serve as strong rebuttal evidence to an unfavorable QME report.
There is a question whether applicant could be compelled to attend the PR-4 evaluation as this could be construed as treatment and there is no legal basis to compel treatment. However, there is a good faith argument that an employer may rely on Labor Code Sections 4053 and 4054 (hereinafter eliminating Labor Code) to compel attendance just as a QME or AME med-legal evaluation.
LABOR CODE SECTION 4050 EXPERT REPORTING
Section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense. The big question is, what good do these reports do for defense? Section 4050 allows you to get an injured worker evaluated by a physician you trust and obtain a thorough report. It’s an opportunity to get assistance in preparing for the cross examination of a QME or AME that might decide to get creative with his or her own report.
In fact, in the panel case of Lopez v. Target Corporation (2012) 2012 Cal.Wrk.Comp. P.D. LEXIS 422, held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.
In Nunez v. WCAB, (2006) 71 Cal.Comp.Cases 161, 169, the Court of Appeal stated that “the Legislature did not intend the medical evaluation and reporting procedures of former section 4060 et seq. to be circumvented by a medical examination under section 4050.” It was explicitly held that such examinations are not admissible as evidence.
This was echoed by the Court of Appeal in Cortez v. WCAB (2006) 71 Cal.Comp.Cases 155, 160. Cortez added that for the same reasons, Section 5701 — which allows the appeals board to direct an employee to be examined by a regular physician — should not be utilized in order to obtain a medical evaluation that violates former section 4062 and may generate an inadmissible report at trial.
The Labor Code specifically limits the types of medical-legal evaluations that are permissible. Under Section 4060, a medical evaluation to determine compensability “shall be obtained only by the procedure provided in Section 4062.2” for represented employees, and “shall only be obtained by the procedure provided in Section 4062.1” for unrepresented employees. Likewise, disputes about medical issues “shall” be resolved by the procedures set forth in Sections 4062.1 and 4062.2 in an accepted claim. If there is an objection to a treating physician’s recommendation for medical treatment, under Section 4610, the defendant must refer the dispute to utilization review. Section 4050 cannot circumvent the medical evaluation and reporting procedures under Sections 4060, 4061, 4062 or 4610.
The changes to the medical-legal process made by SB 899 were intended to further limit the number of doctors providing medical-legal evaluations. So, the reasons stated in Nunez and Cortez for denying the use of Section 4050 to obtain medical-legal evaluations are now even stronger.
Nevertheless, the appeals board has held that Section 4050 evaluations are still permitted. In one case, the board upheld an order requiring an applicant to attend a Section 4050 evaluation set by a defendant. Larios v. WCAB (2006) 71 Cal.Comp.Casess 430. The board noted that, despite various reforms, Section 4050 was unchanged since 1965. The court found that the plain language of Section 4050 entitles a defendant to have an applicant examined by a practicing physician at its own expense. It explained that Section 4050 evaluations would not circumvent the medical-legal process because Section 4050 reports are not admissible and may not be provided to any medical-legal evaluator. The board believed that Section 4050 evaluations have limited usefulness, but concluded that defendants are entitled to obtain examinations under that statute.
There are a number of circumstances in which an employer might use examinations under Section 4050 for purposes other than to create admissible evidence to use in litigation. Some cases in litigation are of tremendous medical complexity. A defense attorney may want to consult with a physician to help prepare for cross-examination of an AME or a QME, and it could be helpful to have that physician examine the applicant. The appeals board has agreed that this is permissible.
There are other reasons why an employer would want a medical evaluation, even if the report is not admissible. An employer may want to obtain an examination under Section 4050 in order to assess whether an applicant may return to work. In addition, an adjuster may fear that not enough evidence is in the file to deny a case in the eyes of the Audit Unit and a medical opinion is needed. If there is not enough time to obtain a proper medical-legal examination before the allotted 90-day period ends, the examiner may have the applicant examined by a physician under Section 4050. The report would be obtained not to resolve the dispute about whether the applicant has sustained an industrial injury, but so the examiner could have medical evidence to decide whether to accept or deny the claim.
If you suspect applicant of lying, a Section 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa. And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, this could be used for purposes of establishing fraud.
Additionally, section 4053 provides that “so long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.” Applicant’s failure to attend the Labor Code section 4050 evaluation could even lead to suspending benefits.
COVID PRESUMPTION – SPECIAL CONSIDERATIONS
Due to the state of emergency in relation to COVID-19, California Governor Gavin Newsom signed into law Senate Bill 1559, establishing a rebuttable presumption that illness or death resulting from COVID-19 arose out of and in the course of employment. Specifically, SB 1159 added three Labor Code Sections: Sections 3212.86, 3212.87, and 3212.88, effective until 1/1/23.
Section 3212.86 codified Governor Newson’s Executive Order, deeming that an illness or death related to COVID-19 is presumptively compensable if the following factors are established: 1) The employee worked at her place of employment at the employer’s direction after 3/19/20, 2) the employee tested positive or was diagnosed with COVID-19 within 14 days after a day he or she worked at her place of employment under the employer’s direction, and 3) the place of employment was not the employee’s residence.
Section 3212.86 provides that an employee can be diagnosed by a state licensed physician assistant or nurse practitioner acting under the review/supervision of a physician/surgeon in addition to a medical doctor.
Section 3212.87 specifically applies to front-line workers, peace officers, and various medical professions where an employee may be exposed directly to COVID. Should an employee fall into one of these categories and contracts COVID-19, the disease is presumed industrial. The employee, however, must establish the following: 1) the employee performed labor or services at their place of employment at the employer’s direction on or after 7/6/20; 2) the employee tested positive for COVID-19 within 14 days after a day that they worked at their place of employment under the employer’s direction and 3) their place of employment is not their residence.
Section 3212.88 establishes that if an “outbreak” exists and an employee contracts COVID-19 with fourteen calendar days, COVID-19 is presumed compensable. To establish an “outbreak,” one of the following three conditions must take place: Four employees test positive for COVID-19 at a specific place of employment with 100 employees or fewer; 2) four percent of the number of employees test positive for COVID-19 where more than 100 employees reported to the specific place of employment or 3) the employer is ordered to close due to a risk of infection with COVID-19 by local or state health officials.
The presumption is disputable and, per Section 3212.88(e)(1), may be controverted by “other evidence.” Section 3212.88 doesn’t limit the evidence that may be used to rebut the presumption. Moreover, Section 3212.88(e)(2)(1) states, “Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.” Note, an employer must issue a denial or delay notice within 30-45 days per Section 3212.88(f), depending on which presumption applies.
Pursuant to Sections 3212 – 3213, public employees working related to law enforcement, firefighting, district attorney, sheriffs, or California Highway Patrol are entitled to the benefit of causation presumption. The presumption applies for all employees and volunteers. Said presumption applies various conditions that develops or manifests itself during a period while the public employee is in the service described in the statute.
In rebutting the presumptions, the defendant must prove that no reasonable link exists, such as by expert evidence for illnesses such as cancer. In determining whether the causation presumption pursuant to Sections 3212 3213, one must analyze the employee’s job duties associated to determine if the presumption applies; a job title will does not carry the presumption with it. For example, an individual with the title “peace officer” specifically assigned to only perform clerical duties, stenographers, telephone operators, etc. may not meet the presumption under Sections 3212 – 3213. Enea v. WCAB (1997) 62 CalCompCases 510.
REBUTTING CONCLUSIVE PRESUMPTIONS
Section 4662, “the following permanent disabilities shall be presumed to be total in character [include]: (a) loss of both eyes or the sight thereof, (b) los of both hands or use thereof, (c) an injury resulting in practically total paralysis, and (d) an injury to the brain resulting in incurable mental incapacity or insanity.”
The WCAB notes that Section 4662(a), conclusive presumptions of permanent total disability does not preclude apportionment based on Labor Code section 4663 and under Benson. Fraire v. California of Department of Corrections and Rehabilitation 2020 Cal.Wrk.Comp. P.D. LEXIS
In Fraire, supra, the applicant was diagnosed blindness in both eyes, and the causation of the legal blindness was proportional to the underlying diabetes and hypertension conditions. The WCAB concluded, after considering Labor Code Sections §§4663 and 4664, “section 4662(a)’s language that certain specified permanent disabilities, shall be conclusively presumed to be total in character simply signifies that ‘one of the attributes,’ but not the sole attribute, of permanent disabilities under § 4662(a) are that they are total, i.e., 100%. However, the fact that these specified permanent disabilities ‘shall’ be conclusively presumed to be total in character does not mean that these disabilities cannot also have other characteristics such as being caused in part by non-industrial factors.”
REBUTTAL WITNESS AT TRIAL
Identify all witnesses on Pre-Trial Conference Statement
Pursuant to Section 5502(d)(3), failure to identify a witness in the pretrial conference statement will prevent that witness from testifying at trial unless the party can show that the witness was unavailable or could not have been discovered through due diligence before the MSC.
You can call any/all of applicant’s witnesses
Section 5502 allows a party to call any witness disclosed at the MSC, even if the witness was not listed on that party’s witness list.
If you believe a witness, whether yours or the opposing side’s, will not appear voluntarily, the party must subpoena the witness to testify at trial.
Applicant’s attendance at Trial not required
Pursuant to CCR 10752(c)), an applicant is not required to attend a trial, if represented by an attorney. Thus, if you plan on examining the applicant at Trial, subpoena them in order to preserve your rights.
Lay witness v. Expert Witness
Per CCR 10682, examination of a medical witness will only be received at trial on a showing of good cause.
In summary, remember that it is always applicant’s burden to prove his or her injury is industrial and whether any presumptions apply. However, the best practitioners will always have their rebuttal evidence prepared to defend all aspects of a claim.
Please feel free to contact your favorite Mullen & Filippi attorney if you have any questions!
By Brock Roverud, Claire Meredith, Ashly Mohammadi and David Bishop Fresno Office November 2020.