Monday, November 7, 2011

WCAB Clarification on Messele Opens Door to Real Reform

"To avoid 'a landslide of reopenings' or other objections to panels, to which the parties had previously acquiesced, and to reports that have already been issued and may have formed the basis for settlements, we issue this notice of intention to modify our Sept. 26, 2011, decision to state that it shall apply prospectively, i.e., it shall govern all panel requests made after Sept. 26, 2011," the California Workers' Compensation Appeals Board (WCAB) said Friday in an en banc decision saying its holding in Messele v. Pitco Foods Inc. should only apply to requests made after Sept. 26, the day it issued the first en banc Messele decision.

In the first Messele decision, the WCAB said litigants must wait 10 days after rejecting an offer for an agreed medical evaluator before requesting a QME panel. The board also said Labor Code Section 4062.2(b) extends the waiting period by five days when the AME request is mailed to an address in California. The waiting period starts on the first day after the date of the first written proposal and includes the last day, the court said.

The Division of Workers' Compensation (DWC) then issued a memorandum that sent waves of concern throughout the work comp litigation community in California by stating its Medical Unit would review panel requests on file and issue panels only when the requests complied with the time frame established by the Appeals Board. The division also said it would honor requests for new panels in cases where an evaluation was already performed, as well as cases where a panel was issued but no evaluation had been done if the original requests were not in compliance with the Messele decision.

Both sides of the bar expressed concern that pandemonium would ensue if it were interpreted that the Messele time frames would apply retroactively, and medical legal report authors questioned whether they would get paid for reports issued on invalid panels because their reports would thus be inadmissible.

So it was pleasant to see the WCAB acting so quickly and with a sense of urgency to restore some calm to the system.

But honestly, the true lesson in this little story is that the process of workers' compensation litigation is completely out of control with complexity, hurting injured workers who can't escape the clutches of a system that drives disability and destroys lives, and simultaneously hurting employers by increasing costs needlessly.

Brad Chalk, current president of the California Applicant Attorneys Association told WorkCompCentral, "maybe we can use this as a stepping stone to working with the administrative director and the Department of Industrial Relations in solving some of those problems and streamlining the process of how parties are actually able to get the evidence necessary to move a case forward".

That would be a welcome first step towards "real" reform of a system that has gotten completely out of touch with the needs of society.workers compensation, work comp, injured worker

No comments:

Post a Comment