Sexual harrassment training by attorneys in San Fernando Valley and Ventura CountyOctober 5, 2010 in the San Fernando Valley or October 7, 2010  in Ventura County.  This low-cost seminar is very valuable for companies of any size.  The law requires companies with more than 50 employees to provide Sexual Harassment Training to certain supervisors. Read more

“The Department of Labor has issued Final Regulations implementing President Obama’s Executive Order 13496.”

Dear Clients & Friends:
As you know we have a strategic relationship with the national employment law firm

Constangy Brooks & Smith (CBS). We would like to share CBS’s most recent Client Bulletin surrounding the implementation of Executive Order 13496, which requires government contractors to inform employees of their rights to form, join and support a union and to bargain collectively with their employer.

Please read the full article below and contact our office with any questions or concerns regarding how this regulation affects your company.


DOL ISSUES FINAL REGULATIONS REQUIRING FEDERAL CONTRACTORS TO POST “LABOR FRIENDLY” NOTICE

By Angelique Lyons
Port St. Lucie Office

May 25, 2010

The Department of Labor has issued Final Regulations implementing President Obama’s Executive Order 13496. The regulations impose two requirements on government contractors and subcontractors: (1) to post a specified notice of employees’ rights to join a union and engage in organizing activity; and (2) to include certain language in covered contracts and subcontracts. While the government calls the long-awaited Final Regulations “very, very balanced,” the required Employee Rights Notice is unquestionably “labor-friendly.” The new requirements go into effect on June 21, 2010.

The Employee Rights Notice

Under the new regulations, government contractors who have contracts that include the employee notice clause and are worth $100,000 or more must post the Employee Rights Notice. In addition, all subcontractors who have contracts that include the employee notice clause and are worth more than $10,000 must post the Employee Rights Notice at their worksites.

What does the Notice say?

The Notice specifically lists seven rights that employees have – six of those rights relate to joining unions and engaging in organizing activity. Only one of the enumerated rights states that an employee has the right not to join a union. Further, the Notice lists employer and union actions that are unlawful under the National Labor Relations Act, and tells employees how to report violations of the law.

Where can I get the Notice?

Employers must use the exact Notice as prescribed by the DOL. The Notice cannot be altered in size, color or content. The Notice can be obtained from the DOL website. Commercially available copies of the Notice in posters combined with other legal postings will be permitted, provided that the size, color and content of the Notice is not altered.

Where do I post the Notice?

The Notice must be posted conspicuously in and around the employer’s facility so that it is prominent and readily seen by employees. Specifically, the Final Regulations state that the Notice must be posted at each location where other notices to employees are posted and where employees covered by the NLRA perform activities relating to the performance of the government contract. Based upon this language, Constangy recommends that employers post the Notice in the following locations:

  • Wherever other government postings are located.
  • Wherever notices to employees of the terms and conditions of employment are located.
  • Each separate and distinct part of the facility (e.g., manufacturing floor, packaging floor, warehouse, front office area).

What if I use electronic postings?

If an employer customarily posts notices to employees electronically, then the Employee Rights Notice must be posted electronically as well. To meet this obligation, the employer must prominently and conspicuously include the following language on its intranet or internet: “Important Notice about Employee Rights to Organize and Bargain Collectively with their Employers,” along with a link to the DOL website that contains the full text of the poster. This language and the link should be included on the employer’s intranet or internet in the same manner and location as other notices to employees.

What if my employees speak a language other than English?

If a “significant portion” of an employer’s workforce speaks a language other than English, then the Notice must be provided in that language as well. The term “significant portion” is not defined; however, if the employer has translated other policies and notices into a language other than English, this Notice should also be offered in that language. The DOL intends to offer the Notice in several languages so that contractors will be able to meet this obligation without too much trouble.

What about my old Beck Posting?

Neither E.O. 13496 nor the Final Regulations specifically state that an employer cannot continue to display its old Beck Posting, and therefore employers can continue to display it should they choose to do so.

Required Contract Language

In addition to posting the Employee Rights Notice, contractors with covered contracts must include the employee notice clause in all subcontracts greater than $10,000. The contract must contain either the entire language found in Appendix A to the Final Regulation or incorporate that language by specifically referring to 29 CFR Part 471, Appendix A to Subpart A.

Penalties for Non-Compliance

During an OFCCP review or upon receiving a complaint, the government will review a covered contractor’s compliance with both the posting and contract language requirements of EO 13496. If a contactor is found in violation of the Final Regulations, the government can initiate enforcement proceedings with penalties up to and including cancellation of the government contract(s) or debarment. Any substantive violations of the provisions of the Employee Rights Notice may constitute a violation of the NLRA and therefore will be referred to and adjudicated solely by the National Labor Relations Board.

Accordingly, Constangy urges all government contractors and subcontractors to review all contracts entered into after the effective date of the Final Regulations (June 21, 2010) and to immediately post the required Employee Rights Notice if they have any covered contracts. (Of course, contractors are free to post the Notice even if their contracts are not covered.) Contractors should also revise their covered subcontracts and purchase orders to include reference to the regulations. If you need assistance in implementing these requirements, please contact any member of Constangy’s Affirmative Action Practice Group or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 120 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas, California, Massachusetts and New Jersey. For more information, visit www.constangy.com.

For a printer-friendly copy, click here.

NAC (NONPROFIT Advisory Council), in conjunction with WISE & Healthy Aging invites Executive Directors, Finance/HR Directors and Board Members to attend:

The Cost of Legislation and Union Organizing on Nonprofits

  • Health Care Reform: What it Means for Your Organization
  • Wage & Hour Compliance, Volunteer Protection Act and Other Laws
  • Understanding the Financial & Non-financial Impact of Union Organizing

Presented by:

Tim DePriest – Chapman Inc.
Al Landegger – Landegger, Baron, Lavenant & Ingber

When:

Wednesday May 26, 2010
8AM to 10AM
Registration and Continental Breakfast begins at 7:30AM

Where:

The Ken Edwards Center
1527 Fourth Street, Street Level
Santa Monica, CA 90401
Directions on flyer (link below)

Registration Deadline:

Registration deadline is May 19, 2010.  To register, please contact Tina Langham at 626-204-2814 or tlangham@chapmanins.com. Feel free to bring an associate with you or pass this invitation along if you are unable to attend. Members of the Nonprofit Advisory Council will be present at the seminar and available for questions.

For more information:

For more information about the seminar content, please contact Tim DePriest – 626-204-2162 or Al Landegger – 818-986-7561

Download:

Download a flyer for the event here (PDF)

About NAC

The Nonprofit Advisory Council (“NAC”), serving the nonprofit industry in Southern California, enhances our stakeholder success through the development of professionals serving the nonprofit market by bringing their skills, experience, and contacts to the Council. NAC identifies services most needed by nonprofit organizations, develops resources to meet those needs, and presents them to stakeholders in an educational and  informational format. For more information, please visit our website at www.nonprofitadvisorycouncil.org or contact any NAC member.

WISE & Healthy Aging, a nonprofit social services organization, enhances the independence, dignity and quality of life of older adults through leadership, advocacy and innovative services.

Subject:

“GO AHEAD AND TAKE A LEAVE OF ABSENCE” – WHAT DO I NEED TO DO NOW?

Description:

If you conduct business in California, you are subject to a complex maze of laws requiring you to provide time off to employees for personal or medical reasons. The leave-of-absence labyrinth is difficult to maneuver without a roadmap outlining the types of leaves, what the requirements are for each and when your obligations are triggered.  This maze has grown even more complicated as we have seen the federal laws on leaves of absence undergo significant revisions this past year.

Attend this informative seminar, bring your problem situations to our workshop and learn:

  • How the FMLA, ADA, Pregnancy Leave and Workers Compensation Leave laws impact California employers.
  • When you must give an employee a leave and for how long.
  • When leaves of absence overlap, which has priority.
  • What documentation you should have to substantiate a given leave.
  • Is there an obligation to continue health insurance or can we place the employee on COBRA.

Come learn the answers that will help your organization reduce potential exposure to costly claims in employment law.

Presenter(s):

Speaker(s):

  • Alfred J. Landegger, Esq.
  • Michael S. Lavenant, Esq.

 

Time:

7:30 a.m. to 9:00 a.m.

Cost:

Free.

Workshop includes continental breakfast and workshop materials.

Where/When:

San Fernando Valley
held the 3rd Friday of every month

Ventura County
held the last Friday of every month

Speaker:  Alfred J. Landegger, Esq.

Friday, September 17, 2010
RSVP by September 10, 2010

Beverly Garland’s Holiday Inn 
4222 Vineland Avenue 
North Hollywood, CA 91602 
The “Cabrillo Room” 
Attention: Parking Cost at this
Hotel is $6.00.

Speaker: Michael S. Lavenant, Esq.

Friday, September 24, 2010

RSVP by September 17, 2010

New Location This Month:
Hampton Inn & Suites – Camarillo
50 W. Daily Drive
Camarillo, CA 93010

Note: This is the new location

Info/RSVP:






Register online at www.landeggeresq.com. For additional registration
needs or questions, contact Marina Ross at marina@landeggeresq.com
or 818-986-7561 Ext. 16.

Workshop Signup Form
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Reservation Cancellation Policy:

If you must cancel your registration, please do so 48 hours in advance of the workshop.

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Obtain Materials Now!

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Upcoming Workshops

Check back monthly for the topic(s) of upcoming workshops.



Clifford Weinberg, Employment Law, Workers Compensation AttorneyCliff has practiced exclusively in the fields of personal injury and workers compensation for over 28 years. Originally involved in the representation of plaintiffs and injured workers, his career path led him to the aggressive defense of employers in workers compensation litigation. This unique dual perspective served him well over the last 4 years as Managing Attorney of the Los Angeles Regional Office of Chernow and Lieb, in-house counsel to Zenith Insurance Company, Woodland Hills, California.

We are excited about the continued growth of our Firm.

You can find out more about Cliff here.

Diana Vlasova, Attorney, Employment Law, Labor Law, Workers CompensationWe are pleased to announce that Diana Vlasova has joined our firm as associate attorney of our Workers’ Compensation Department effective February 16, 2010.

Diana earned her B.A. in 2005 from the University of San Diego in International Relations and earned her J.D. in 2009 at Whittier College School of Law. At Whittier College School of Law, Diana was a member of the Trial Advocacy Honors Board, Vice President of the Student Bar Association, Founder of the Students Against Drunk Driving Club, and Treasurer of the Armenian Law Students’ Society. Diana is fluent in Russian and conversational in French.

We are excited about the growth of the Firm. If you would like to know more about Diana, visit her page on our website here.

OVERALL ECONOMIC OUTLOOK IS BRIGHT BUT EMPLOYERS’ FUTURE WILL BE PARTLY CLOUDY

By Michael S. Lavenant.

For those of us who attended the Camarillo Economic Outlook Luncheon in November, 2009, we were reminded that Camarillo is a great place to work and live.  The local business economy is showing signs of rebounding and the real estate market is definitely looking bright.  The start of the new year typically brings with it some encouragement for businesses as they look forward to new opportunities for growth – coupled with a feeling of hope and optimism by consumers, customers, patrons and investors.

In addition to receiving positive news for Camarillo and our local economy, from a national perspective, there has also been some positive labor news.  In November, the US Department of Labor indicated that only 11,000 jobs were loss – 100,000 less than expected!  This report came on the heels of reports that the job loss estimates for September and October were too high – we loss 150,000 less jobs than anticipated

While the overall economic climate appears to be clearing on the horizon, the labor front always brings some clouds to employers.  In the past few years, we have had to deal with changes to the FMLA, ADA, workers’ compensation reforms, and sexual harassment prevention training.  This year, there are no big clear storms that we will have to weather.  However, that does not mean that it will always be sunny.  There are several storms brewing on the state and national level that could wreak havoc with our hopeful business growth and stabilization.  Here are few storms to consider in your forecast:

Health Care

The Obama administration and Congress are pushing for an overhaul of our present health care system.  As the plans stand at this early stage, employers may carry a large portion of the funding burden.

EFCA/Card Check

Traditionally, in order for an employer to face a union election, there has to be a secret-ballot election within 42 days only after the union has established a requisite percentage of interest by the employees.  Unions are pushing President Obama and the Democrat-majority Congress for major reforms that would eliminate the 42-day period and shorten the wait to 5-10 days.  It would also eliminate the need for a secret-ballot election.  If this law goes into effect, unions would be able to intimidate employees into signing authorization cards without giving them the complete story.  EFCA/Card Check is very bad for business.  The current systems works just fine.

Meal & Rest Periods:

The California Supreme Court is expected to reach its decision on a key case that will determine whether an employer must force an employee to take a lunch or rest break, or only make the break available.  The employers and employees desire flexibility, but plaintiffs’ attorneys are pushing for stringent rules that make it easier to file frivolous and expensive class actions for technical violations based on an employee’s voluntary decision to forego a lunch break for personal reasons, or to leave earlier in the day to spend time with their family.

FMLA/Leave Laws:

There are proposals to further amend the FMLA to require mandatory paid sick leave for up to 8 weeks, authorization for employee’s to take time off for a child’s extracurricular activities, and paid time off for doctor’s visits.

Hopefully the anticipated hurricanes of state and federal legislation fail to take fore, or at the most, become tropical depressions.  We will be updating the forecast as it develops.  Stay tune for storm watch 2010.

Date: March, 29, 2010

When Should I Use an AME?

As most of you are now aware, we generally advise and counsel against the utilization of an Agreed Medical Examiner (“AME”) in the vast majority of cases and under most common factual scenarios.  For one thing, AME’s tend to reflexively find some way in which to determine the existence of injury and then justify those findings or they may simply skirt the issue altogether by deferring to the so-called “Trier of Fact.”  So many times, we have reasonably legitimate expectations that the chosen AME will be fair, reasonable and responsive.  After all, didn’t we send him/her that great cover letter and what about those impressive, voluminous exhibits, including a 100 page deposition transcript?  Didn’t they even bother to read those things?  What happened?

Very commonly, we know that AME reports are generally associated with disappointing and incomplete findings, or non-responsive discussions.  More often than not, we also have to endure more reports, re-evaluations and other impairments to simply getting to the bottom line.

And there are the odds.  Applicant attorneys know by history and experience that most commonly selected, popular AME’s will mostly find some level of injury and impairment.  This explains the generally willingness of applicant attorneys to use AME’s but that use is tempered by the reality that “acceptance” of AME findings is less frequent.

WHY NO AME’S IN MOST CASES?

Here are some of my thoughts on why just saying “no” is probably the right decision in most cases:

  • AME’S READILY FIND INJURY:  Always keep in mind it is just the applicant and the doctor “face-to-face” in the examination room and you are not there.  The examination becomes self-serving and even more so, when the applicant comes “prepared” by rehearsing with their lawyer.    It seems as if most AME’s tend to find some level of injury or at least to one or more contested body parts, so that a clear defense “win” is often very elusive.
  • IGNORING JOINT COVER LETTER AND EXHIBITS:  AME’s may frequently ignore the joint cover letter and the accompanying exhibits and simply proceed to conduct their own inquiry, sometimes brushing aside or overlooking the very interrogatories being presented by the parties.  Other times, they may regard all cover letters as ‘much the same’ and therefore ignore selectively chosen issues, which can go unheeded.
  • IT USUALLY TAKES TOO LONG: It can take several months before the applicant is actually seen by the AME.  What happens during that time when you have a TD claim or treatment issue pending?  What about the applicant who fails to attend?  What about the doctor who has to postpone?
  • IS IT REALLY DONE IN ONE EXAM?:  Often, the AME will examine the applicant and then recommend a further or repeat diagnostic test, a new procedure or even a referral to some other physician before finally determining MMI and impairment.  This just starts the process of going nowhere slowly.
  • AME REPORT IS INCOMPLETE?  Have you ever seen an AME report where the doctor discusses diagnosis, injury, treatment, TD and PD but ignores and therefore fails to address apportionment? You are now in the untenable position of having to either direct a joint interrogatory to the doctor or face the proposition of having to schedule a cross examination many months down the road.  It seems as if the “overlooking” of an important issue occurs more frequently than it should.  Also, some AME’s have “rules: by which they will not agree to fix something or make a correction without a formal cross examination.  This just adds to the frustration content.
  • WHERE ARE ALL OF THE RECORDS?  At long last, you receive your AME report, only to discover for the first time, that the Doctor didn’t get a document or an important medical record.  Why didn’t they tell us before the examination?  Why didn’t they call and tell us? Now, we face a potentially adverse report, while having to seemingly scramble to obtain the needed but not included records, which the AME never received.  And what are the chances that the AME will get those records and then change his or her mind?  There is a maxim here.  Once the report is written it is much more difficult to get the AME to change the determinations after-the-fact.
  • WILL THE OTHER SIDE NOW SETTLE? Some applicant law firms will endeavor to lull you into thinking that the usage of the AME will be the hopeful anticipated gateway for case resolution. [Ever wonder why so many applicant lawyers are overly eager to use an AME?]  Actually, with some of the firms, you might be walking into a carefully pre-designed “trap.”  While they attempt to impress you with their willingness and flexibility to go to the AME, when the report comes out, what happens if the findings are only modest-to-moderate?  Will the case now really settle?  In many instances, the short answer is “no.”  You will get the automatic “objection to the AME findings” followed by the deposition notice.     Why?  Because the applicant attorneys know something.  They know that the longer the process prolongs, the more time passes and the more opportunities the AME has to write another report, will usually tend to make the case more valuable and hence the expectations of a higher settlement, “down the road.”
  • TIME FOR THE AME DEPOSITION? Question:  How many times do you not see one side or the other setting the AME cross-examination?  Most AME’s don’t want to deal with supplemental reports or responsive interrogatories in order to clarify or explain something. A few may respond to an interrogatory but this now calls into the play the willingness of applicant’s counsel to cooperate.  Why should they?  Some applicant attorneys will routinely schedule the cross-examination, knowing that with only a few well placed questions, they will more-than-likely get the AME to either recommend a new referral or another evaluation.  (“Doctor don’t you think my client should have a pain management evaluation or sleep study?)
  • IS A RULE OUT OF FURTHER TREATMENT REALLY THE END? Regrettably, the answer is often “no.”  By simply going out and self-procuring or adding a “new body part,” the other side is now staring a new phase of the game.

SO WHEN DO I USE AN AME?

Here is an easy reference chart which correlates and issue to whether you should generally use an AME.  Obviously, the decision process must be accorded on a case-by-case basis, so that no rule can be applied in every case.  But the following are some suggested issue structures, which tend to correlate with whether or not to use an AME.

Always use caution when selecting an AME. One good way to test the quality of an AME is to find a recent report and look at the apportionment discussion.  Does the AME address apportionment to “causation” or to “disability.”  If the apportionment discussion is weak, the best advice is to generally “pass” on that AME.

ISSUE

NO

YES

MAYBE

COMMENT

ORTHOPEDIC

AOE/COE: factual dispute:  injury did not occur or where there are “red flags” –injury denied

X

AME’s don’t do well with factual issues.  Don’t expect them to help here

AOE/COE:  legal defense:  e.g. initial aggressor, post-termination, not in the course, coming and going, etc.

X

Don’t use an AME when you have a good legal defense.  It can only hurt.

Admitted injury to a single body part and the dispute is MMI, impairment and further or future medical treatment.

X

So long as you are not dealing with a firm which will “add” body parts.  If so, then “no”.  Make sure you only have the one or two body parts admitted and no other left “in play.”

Admitted injury:  apportionment, Benson (you have records of prior injuries and factors for apportionment)

X

Be selective and careful.  Make sure that a good cover letter is done and that the doctor is familiar with Lab C 4663 and Escobedo v. Marshalls

Medical Issue:  Treatment (non-exotic) and TD

X

The “wait time” makes this very difficult.  Unless

Medical Issue:  exotic condition and/or treatment

X

But try and pick an AME who knows the field and who can see the applicant within a reasonable period of time.  (If the applicant is not TD so much the better)

Medical Issue:  MMI and need for “further” or “continuing” medical care

X

So long as TD is not in issue, this is usually the best opportunity to use an AME

Applicant credibility:  deposition testimony reveals applicant to be untruthful;  you have films

X

You will find disappointment in over 90% of the times you use an AME, when you have credibility evidence.  Only the Trier of fact might be impressed and usually not the AME.

DISPUTED BODY PART:

X

The general rule is “no.”  AME’s tend to be injury finders.  If you have something substantial by way of a defense, you are usually much better off at the WCAB.

CONTINUOUS TRAUMA; AND WHO IS RESPONSIBLE?

X

AME’s usually go 50/50 or by the proportionate amount of coverage so if you are on the risk for 40%, expect most AME’s to find liability consistent with that exposure.

ALPHA ATTORNEYS

XXXX

Don’t go there

PYSCHIATRIC

Denied on disputed factual and/or legal basis (e.g.)

  • Claim is denied as post term

  • Claim is denied because there are  no “actual events” at the work place which qualify

X

If you have a factual defense using an AME can only cause a risk that he/she won’t consider it, won’t agree or will defer to the ‘Trier of fact.”

AME’s cannot address legal issues/

Lack of applicant credibility

X

Same as above

Admitted psychiatric claim and the issues are impairment and apportionment

X

But not with the Alpha lawyers

INTERNAL:







Fibromyalgia




X


AME’s find injury; don’t’ fall into trap.

IBS

GERD

Hypertension

Pulmonary and respiratory

Toxicology







X

X

X

X

X

X

Select an AME who knows the field of medicine well and can write a reasonably decent report.  Don’t pick an AME “out of field”   (Make sure you have the MSDS if you go with a toxicologist)

SLEEP APNEA

X



This is usually not industrial so a generally safe bet

OTHER SLEEP DISORDERS INCLUDING INSOMNIA


X


Don’t trust any yet

CARDIOVASCULAR (treadmill, METS, heart issues ,coronary heart disease)

X



So long as the record is complete, you have a good deposition and a decent physician.

GENERAL STRESS CAUSING PHYSICAL AND EMOTIONAL SYMPTOMS


X


Too open-ended and too risky. AME’s very likely to find injury on something.

VASCULAR

X



This is such a narrow specialty that I rather like this choice in many occasions, since very few workers’ compensation physicians are experts

On February 17, 2009, new regulations governing the QME process became effective, though without much fanfare, let alone controversy

Imbedded within these 97 pages of revised regulations is the so-called “Regulation No. 30,” which has been the subject of mounting concerns and growing frustration as claims professionals cope with yet a new set of oversight regulations, which have made an already confusing PQME process even more difficult, especially when a claim is on a delay status and consideration is being given to obtaining a compensability medical determination, under Labor Code Sec. 4060.

A strict application of Regulation No. 30 can have a potential “Catch 22” effect.  Very simply, The DWC Medical Director will not issue a 4060 QME panel if:

1)       The employer has accepted as compensable injury to any body part in the claim. [8 CCR 30(d)(2)]:   By illustration, if a claim form alleges injuries to the back, neck, arms, lower extremities, internal, psyche and nervous system, and the claims administrator admits only the neck, there is no 4060 PQME issuable for any of the other contested body parts.  For these contested body parts, only a 4062 PQME is permissible;

2)      If the claim is denied entirely: [8 CCR 30(d)(3)]:  In this case, only the employee may request a PQME for a 4060 evaluation.   For example, in the same claim as above illustrated, the claims administrator issues a claim denial, based upon Labor Code 3600(a)(1) and 3208.3 (e) “post termination” both psyche and physical.  This is a non-medical basis for the denial and therefore has no relationship to whether there is a disputed medical causation issue, which goes to the very heart of compensability, under Labor Code 4060.  Still, under these rules, the Medical Director will not permit a 4060 compensability examination.

3)      After the expiration of the 90 day period within which to deny a filed claim form under Labor Code 5402, a request for a 4060 PQME shall be issued only upon presentation of a finding and decision by a WCJ that the presumption under 5402(b) has been rebutted and an order that a QME panel should be issued to determine compensability

Needless to say, this rule provides an ongoing challenge when a claim is in the so-called “delay” stage, and the claims administrator wants to obtain a 4060 QME on compensability.  Here, it is important to remember that the DWC Medical Director will not issue the panel if either the claim has been “denied” in its entirety or any body part within the claim has been accepted.  The problem here is that this rule ignores the simple fact that there may be “multiple” reasons to contest a claim.  Also, over time, some of the grounds within which to deny a claim may change or a potential defense can give way. A claim can be denied by:

Statutory Defenses

  • Initial physical aggressor
  • Commission of a felony
  • Post-termination
  • Voluntary intoxication
  • Intentional self-infliction
  • Off-duty recreation
  • Lab C 5500.5
  • Good faith personnel actions


Factual Defenses

  • The incident did not occur / witnesses dispute alleged facts of injury
  • Inconsistent versions of the event
  • Alleged mechanics of injury make no sense
  • Applicant not in the course of employment
  • Injury did not arise from the employment
  • The applicant is not credible
  • Applicant suppressed relevant facts
  • Applicant was not candid

Medical Defenses

  • There is no medical injury
  • There is no medical condition diagnoses
  • The employment did not aggravate condition
  • The medical condition is idiopathic
  • False medical history to doctor
  • Medical opinion based upon surmise, conjecture, speculation and guess
  • Physician’s opinion is not substantial evidence
  • No medical causation
  • Alleged mechanics of incident are not consistent with industrial injury

Legal Defenses

  • Claim is time barred
  • Res Judicata (prior decision)
  • Case was settled previously by C and R
  • There is no offered proof
  • Claim Form does not assert body part in issue
  • Physician’s report is incomplete as it does not comply with the Rules governing medical reporting
  • Physician’s report is incomplete as opinion is outside of scope of doctor’s expertise
  • Physician suspended

Multiple defenses can occur and interplay with the medical causation issues and therefore if a claims administrator denies a claim based upon a statutory or factual defense and is therefore not permitted to obtain a 4060 PQME, what happens when within the 90 days, that defense is withdrawn?  What takes places if the claims administrator wants to develop the medical causation issues independently of any other claim denial bases? We don’t know.

RECOMMENDATIONS:

Now more than ever, the timing issues become very important. For example, you are in the 18th day and you may have a post-termination defense, but this hasn’t been fully developed.  If you issue the denial on that basis, then the claim is denied and no 4060 PQME shall be permitted under Rule 30.  On the other hand, you may want to make the decision to postpone that post-termination denial, obtain a 4060 PQME on the medical factual issues and then reserve your right thereafter to deny on the other grounds.  Of course, this comes at the risk of having to pay for the medical treatment per Lab C 5402(c) up to the $10,000 limit.

I am not convinced that a PQME should not issue, simply because there exists another threshold non-medical defense.  I therefore recommend the option of asking for a 4060 QME panel but telling the DWC Medical Unit that the medical causation issues have not been denied –that the claim was denied on non-medical grounds and the claims administrator is requesting a PQME on the medical causation issues, which have neither been denied or admitted.  Also, remember, a WCJ is empowered to issue an order for a panel, and when you have a hybrid case, involving both medical and non-medical causation issues, and/or legal grounds, it may be advisable to obtain an order for a 4060 Panel QME from a WCJ.

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Workers Compensation can be a costly issue for your business.  At Landegger, Baron, Lavenant & Ingber, we specialize in helping your company contain the costs associated with Workers Compensation.

We are strong believers in prevention.

Prevention is significantly less costly than litigation.  We have many alternatives to help your company prevent Workers Compensation claims and avoid that litigation.  We have monthly workshops on a variety of employment law topics, including Workers’ Compensation.  Additionally, we provide seminars and in-house training programs for your company’s staff.

We understand Workers’ Compensation litigation.

If you need our services because your company has found itself in a legal bind relating to Workers’ Compensation, you can depend on our legal services.  We have very extensive legal experience with Workers’ Compensation.  One of our partners, Corey A Ingber,  has been practicing Workers’ Compensation defense since 1981.

More information about our Workers Compensation Solutions and Advice can be found on these pages: