If you are you an attorney or injured worker who’s in the process of filing a California workers’ compensation claim, you may have received an adverse medical opinion from the medical examining panel that adjudicated your case.
In fact, this is a quite common occurrence, and there are several cases that we can examine to get a better idea of what this means for your claim.
In truth, the holding on the Cowell Vs. County of Los Angeles case was not actually revolutionary. That’s because it was really upholding the same decision as the holding in Navarro, which was an en banc decision.
Still, Cowell Vs. County of Los Angeles does clarify an important issue. So, let’s look at the details, starting with the holding in Navarro.
The holding in Navarro is extremely important to injured workers. But there’s a dispute that’s arisen in the case.
Basically, in the case, a neutral panel qualified medical examiner gave an evaluation, and it was an adverse report. According to Navarro, if a subsequent claim was then filed after that (the date of initial injury), the applicant attorney or the injured worker would say no thank you to the panel qualified medical examiner who gave the adverse report the first time.
This makes sense.
You wouldn’t want to go back to that panel qualified medical examiner who “washed you out”. He was only the panel qualified medical examiner on that claim and the date of injury.
But here, there is a huge fight between the applicants bar and defense bar. The defense is saying, nope, once you have a panel qualified medical examiner, no matter what, you have to go back to this doctor. Of course, they wanted that because they wanted this doctor to continue writing conservative, washed out reports for injured workers.
And of course, the injured worker or their attorneys were saying, no, this isn’t fair; this is a new claim, I’m not entitled to go back to that doctor.
It was quite revolutionary when Navarro came down and essentially said, if it’s a new claim, you are not obligated to go back to that panel qualified medical examiner.
But what about existing cases? Or cases that were wrapped up prior to that date of injury?
This was the dispute. Some defense argued that the prior dates of injury under Navarro made it so you were not entitled to new panel because there was already a panel to address those. Their contention, however, was that only with subsequent injuries was an injured worker entitled to a replacement or a new panel qualified medical examiner.
Well, this case essentially came down and made that determination dispositive because it indicated that it’s not the date of injury that’s dispositive. It’s the date of the claim.
This means that even if it’s an older date, if the claim form is filed timely, subsequent to that PQME evaluation under Navarro, the injured worker is entitled to a new PQME to adjudicate that.
So, what does that mean?
Well, if you’re an injured worker, or an injured worker’s attorney, that means you can look at your file, and if you get an adverse PQME washing your client out and you want another bite at that apple, hopefully, you can find a good neutral doctor. You want correct medical evidence that you can rely on at trial to get your client benefits. You need to work up the medical evidence.
Essentially, what I would do is look through the claim and see if there are any dates of injury that haven’t been filed. And if that’s the case, file those dates of injury and get a new panel qualified medical examiner.
If you are an applicant attorney or an injured worker, this is a very good case to use. Once you do get a replacement doctor, it does drive up the cost for the litigation in the defense. But very often, it’s a tool that you can use to get an adequate settlement.
Alternatively, if you can’t use the leverage to get an adequate settlement, get the medical evidence you need to promptly adjudicate it down at trial.
If you have any questions or concerns about this case or a worker’s compensation claim, please feel free to give us a call. We’re standing by and proud to offer free initial consultations.
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DISCLAIMER - This video is for educational purposes only.
The video is a general overview and is based on the opinion of Mr. Burgis.
Every claim is distinct and the applicable law can vary from case to case and
is dependent on multiple factors including, the date of injury.
This video is in no way intended as legal advice.
This video does not create an attorney-client relationship.
Feel free to contact the Law Offices of Michael Burgis & Associates, P.C. for a FREE personalized case evaluation at (855)287-4471.
OR CALL US FOR FREE CONSULTATION(888) BURGIS1 (888) 287-4471
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