New and further disability is not defined in the statutes and judicial interpretation has not flushed out all its potential permutations. Thus, its meaning is not entirely clear. However, it has been judicially defined “to mean disability . . . resulting from some demonstrable change in an employee’ condition, including a gradual increase in disability. .” Nicky Blair’s Restaurant v. WCAB (1980) 45 CCC 876. See CHP v WCAB (2010) 75 CCC 1241.
Defendants Denial Of Medical Treatment Based On Opinion Of QME(Qualified Medical Examiner)
A defendant can deny medical treatment to an injured worker based on the opinion of a QME(Qualified Medical Examiner), even if the primary treating doctor recommends such medical treatment.
In Regards To The Statute Of Limitations Cumulative Trauma Injury
Date of injury in cases of cumulative trauma injuries is date on which employee first suffered disability and knew, or should have known, that such disability was caused by employment. Statute of limitations is one year thereafter.
In Regards To An Unrepresented Applicant Examined By A QME
An applicant who has been examined by a panel QME and who later obtains representation is not entitled to an additional QME evaluation.
Regarding A Petition To Reopen For New And Further Disability
Labor Code Section 5410 provides that a party can petition to reopen within 5 years of the date of injury upon the ground that the original injury has caused new and further disability . . . The new and further disability must be based on the body parts that were part of the original award or that were compensable consequences of injuries to the original body parts contained in the original award.
A petition to reopen for new and further disability requires that there be a causal connection between the alleged “new and further disability” and the original industrial injury. Put another way, the new and further disability must be a result or an effect of the prior compensable injury. This causal connection may be in the way of further injury to the same body part or injury to a new body part as a compensable consequence of the original injury.
Regarding Psychiatric Permanent Disability 6 Month Rule
Labor Code Section 3208 generally bars claims of psychiatric injury if the applicant was employed less than six months. Exception “sudden and extraordinary employment condition.”
In regards to a predominant cause requirement in psychiatric permanent disability
In order for an psychiatric injury to be compensable the employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. Predominant means that the actual events of employment account for greater than 50% of a psychiatric disability/injury.
Regarding A QME opinion on Permanent Disability
The opinion of a QME (Qualified Medical Examiner) is not controlling on the issue of permanent disability. A WCJ (Workers Compensation Judge) can follow the opinion of a PTD (Primary Treating Doctor) or an AME (Agreed Medical Examiner) in deciding the level of permanent disability or the issue of apportionment based on which opinion constitutes substantial medical evidence.
For a medical opinion on apportionment to constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on adequate examination and history, and it must set forth reasoning in support of its conclusions.
Medical Provider Networks – Access Standards
On appeal the workers compensation appeals board found that although defendants medical provider network did not provide a minimum of 3 physicians within 15 miles or 30 minutes of applicants residence that the network was in compliance because it had at least 3 doctors located within 15 miles of applicants work place. (8 Cal. Code Reg §9767.5(b))
Information that a party proposes to provide to the Qualified Medical Evaluator(QME) shall be served on the opposing party 20 days before the information is provided to the Evaluator(QME). If the opposing party objects to the non-medical records within ten days, the records shall not be provided to the QME.
Communication with AME – QME
All communications with an Agreed Medical Evaluator(AME) or a Qualified Medical Evaluator(QME) before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.
Ex parte communication with an Agreed Medical Evaluator(AME) or Qualified Medical Evaluator(QME) is prohibited.
If a party(including the applicant) communicates with the medical evaluator on an ex parte basis the defendants can select a new AME or a QME.