California: If You’re Thinking Navarro, Think Claim Form!

In Parker v. DSC Logistics, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel rescinded the WCJ’s finding and held that the applicant forklift driver, who filed separate claims for a 10/30/2009 injury to his back, a 3/31/2014 injury to his back and neck, and a cumulative injury to his back and neck during the period ending on 5/14/2014, and underwent a Labor Code § 4060 medical evaluation on 1/9/2015 by a panel qualified medical evaluator John Steinmann, M.D., regarding the 3/31/2014 claimed injury, was not entitled to new qualified medical evaluator panels to address the 10/30/2009 specific injury or cumulative injury, but rather was required to return to Dr. Steinmann for an evaluation of the disputed medical issues in those cases pursuant to Labor Code §§ 4060, 4062.2 and 4062.3 [LC 4060, 4062.2, 4062.3], 8 Cal. Code Reg. § 35.5 [R 35.5] and the WCAB’s en banc decision in Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 [79 CCC 418] (Appeals Board en banc opinion).

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Here, all three of the applicant’s claimed injuries were reported by way of claim form prior to the date of the applicant’s initial evaluation by Dr. Steinmann. The WCAB panel found that the date of filing of the claim form determines which injury claims must be considered by the medical-legal evaluator. The WCAB panel found that although in new cases filed after an initial qualified medical evaluation, the employee is not required to return to the original evaluator for an evaluation of new injuries even where the injuries involve the same body parts and same parties, under the holding in Navarro (which differed from this case in that it involved claims of injury filed subsequent to the initial qualified medical evaluation) the same qualified medical evaluator is required to address all contested medical issues arising from all injuries reported on one or more claim forms filed prior to the initial qualified medical evaluation.

Commentary:

In the two years since Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 (Appeals Board en banc opinion) was issued, there has been a great deal of uncertainty as to when an injured worker is entitled to multiple QME’s in multiple injury cases. In some cases it has been argued that the injured worker is entitled to a separate QME for each injury filed, and in others, it has been advanced that only under the precise facts present in Navarro could the injured worker obtain an additional QME.

This uncertainty was perplexing because the WCAB en banc in Navarro was clear. The commissioners there specifically concluded that it was the filing of the claim form that was the operative act in determining the injured worker’s entitlement to an additional QME. For example, if a March of 2015 date of injury was the subject of a QME evaluation on September 15, 2015, and the injured worker turned around and filed a claim form for a 2014 date of injury on September 16, 2015, he would be entitled to an additional QME in relationship to the 2014 date of injury. This would be true even though the subsequently filed date of injury predated the date of injury that was already the subject of a QME evaluation. In other words, it’s when the claim form is filed that matters, not when the claimed injury is alleged to have occurred.

There is no question that an unscrupulous injured worker could try to game the process by filing a claim form for one injury, proceed through the QME process on that injury, and then wait to file a second injury in order to obtain a new QME. However, there would be a serious risk with this approach in that by waiting to file the second injury, the second injury may not get timely filed. Indeed, the risks involved with taking this approach would be greater than the possible benefit of having multiple QME’s in multiple injury cases.

In conclusion, in most cases, the injured worker will only be entitled to one QME to the extent the injured worker or his counsel will usually concurrently file all of the claims of injury as soon as those claims of injury become known to them. Accordingly, all of the claimed injuries will typically be on file when the initial QME is obtained. However, the parties would be well advised to determine in every case whether new claims of injury, including new claims of injuries pre-dating the injury already evaluated, have been filed. In those cases, the either party may be entitled to request an additional QME which could significantly impact the case.

Read the Parker noteworthy panel decision.

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