Joined: Jun 2002
Sunday October 10, 2004 6:55 PM
The language that you quote from 4060(b) (two posts ago) prohibits an employee from obtain an medical legal report before a claim form is filed and before denial. This language does not prohibit an employer from obtaining such a report.
This language was instituted to prevent the medical-legal abuses that were rampant in the late 1980s where mills would conduct multiple medical legal exams on IW where there was no actual claim of injury. The medical legal mills could claim that the medical legal reports were payable because there did not have to be a finding of injury to award medical legal expenses and the reports were ostensibly obtained to proved a medical issue (injury). In reality they were a cash cow for the medical groups, the allegedly injured workers were frequently gone, haven taken their couple hundred bucks for giving up a half an hour of time for the 6 "exams" that were billed out on their behalf.
Many have forgotten how often this abuse occurred and it was actually one of the driving forces behind the reforms in both 1989 and 1993. It was fairly common, particularly in Southern California (not my beloved No. Cal) for the medical legal expenses to far outstirp the potential value of any case. There are many of us who think that the only reform we ever really needed was SB 31 which limited medical legal reports to cases where a claim form was filed and then denied and that this effectively killed the mill operators (except that many of them simply opened surgical centers - the next great waive of abuse).
In a case where the employer retains control of medical care and liability for injury is accepted there is no basis for a 4060 report since liability for compensibilty is not disputed.
Finally I certainly agree with my collegue from ATB&P Jesse Rose, a former WCJ, who wrote the article in the State Bar Newsletter that there is "confusion" over the right to a medical legal exam on represented cases for injuries before 1/1/05 as there is no statute that seems to directly address the issue. I actually think that there is also no prohibition on obtaining a report as obtaining a report for injuries before 1/1/05 does not violate 4062.2 since that section is not applicable until injuries after that date.
It is my experience that most attorneys are ignoring what has come to be termed the "black hole" for exams after 4/19/04 for injuries before 1/1/05 because it is a two edged sword. If defendants cannot obtain exams, neither will AAs. That might be fine for now while AAs can direct thier clients to their house docs. But after 1/1/05, who gets to direct to their house docs and who will want to obtain medical legal reports in pre-1/1/05 cases?
Besides, I think that since there is no prohibilition on obtaining a medical report for these cases , 4064(d) authorizes it. It just provides that the IW has to pay for his/her own report.
We are all better off putting on blinders to this particular legislative blunder and trying to obtain competent medical evaluations on legitimate issues to make the system function. I have always felt that one of the worst parts of the 1989 & 1993 reforms was the elevation of procedural matters over substance. Handling WC cases became a game of "gotcha" over dates that letters were sent out, objections were made and, worst of all, who has the @*%%#%%+% presumption of correctness of the PTP, rather that the quality of medical evaluations and legitimate legal issues.
Adelson, Testan, Brundo & Popalardo