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Discovery

Applicant’s Petition to Reopen Denied because Claimed Injuries Were Not New

Applicant sustained injury to his left knee on May 9, 2008. The case settled by Stipulations with Request for Award on October 12, 2012. On March 14, 2013, applicant filed a Petition to Reopen for New and Further Injury, including injury to the psyche and hypertension as compensable consequences of the knee injury.

Defendants Not Required to Disclose Sub Rosa Video Prior to Mandatory Settlement Conference

The orthopedic QME reported that the injuries resulted in 11% Whole Person Impairment to the shoulder and 5% to the lumbar spine. The psychiatric QME report resulted in 61% Whole Person Impairment. Applicant’s attorney also retained a vocational expert who offered the opinion that the applicant’s injuries made him incapable of rehabilitation and that he had a 100% loss of future earning capacity. After receiving the vocational expert’s report, defense counsel noticed the expert’s deposition. The deposition notice was dated March 13, 2015 and scheduled the deposition for July 7, 2015.

GET OUR REBUTTAL IN ORDER!

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.

Information vs. Communication: A Changing Syntax

Section 4062.3(b) requires that “information” proposed to be provided to the QME “shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator.” Although §4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve that objection. The failure to object at the first opportunity may be construed as an implicit agreement by the opposing party to provision of the information to the QME.

Kite, AMEs, and the WCAB: The Perfect Storm

The 2017 decision of Kite v. Athens Administrators (2013) 78 CCC 213 (writ denied) has left the legal community scratching its collective head. From the definition of “synergism” to whether “overlap” necessarily rules out compensable consequences, the courts have issued a dizzying array of inconsistent decisions. In this article, we will explore the history of Kite and its progeny, and address what appear to be the critical elements of sustaining — or defeating — a Kite analysis. Finally, we will address holding of the 2018 Fitzgerald case and its likely impact on the Kite line of cases.

Objection to QME Report on Timeliness Grounds Must Be Raised Before Receipt of Report

In order to address the denied psych claim, the parties utilized a Qualified Medical Evaluator. The psychologist conducted her examination on November 4, 2014 during which she spent seven hours conducting and analyzing psychological testing. On November 10, 2014, she issued an “abbreviated report” stating that the applicant had sustained injury to the psyche and that the injury was predominantly caused by his employment.

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