Case Law ML-

1. 1 WORKERS' COMPENSATION APPEALS BOARD
2 STATE OF CALIFORNIA
3
4
Case No. ADJ2764972 (SJO 0267372)
5 HOLLIE NELSON,
6 Applicant, ORDER DENYING
PETITION FOR
7 vs. RECONSIDERATION
8 CABRILLO UNIFIED SCHOOL DISTRICT;
KEENAN ASSOCIATES REDWOOD CITY,
9
Defendants.
10
We have considered the allegations of the Petition for Reconsideration and the contents of the
12
13 report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our
14 review of the record, and for the reasons stated in said report which we adopt and incorporate, we will
deny reconsideration.
15
We agree with the WCJ that Dr. Newman's reports were prepared for the purpose ofproving the
16
extent of applicant's permanent disability and, therefore, they were medical-legal reports. (Lab. Code, §
17
4620(a); see also Cal. Code Regs., tit. 8, § 9793(c)(2).) One of the main bases for determining the
18
19 compensability ofa medical-legal report is whether it was reasonable and necessary "with respect to the
time when the expenses were actually incurred." (Lab. Code, §4 621 (a).) Here there is no question that,
20 as the primary treating physician (PTP), Dr. Massey could properly request another physician to prepare
21
a permanent and stationary report. (Lab. Code, § 4061.5; Cal. Code Regs., tit. 8, § 9785(c); cf. Lab.
22
Code., § 4663(c).) It is true, of course, that Dr. Newman's reports could not have been relied upon by
23
the WCJ if the issue of permanent disability had been presented for determination (see Lab. Code, §
24
5815) unless Dr. Massey had adopted and incorporated Dr. Newman's findings. (Lab. Code, § 4061.5;
25
Cal. Code Regs., tit. 8, § 9785(e)(4).) But the fact that, at the time of the March 6, 2013 stipulated
26
award, Dr. Massey had not yet adopted Dr. Newman's findings does not mean the latter physician's27

2. 1 reports were not reasonable and necessary at the time the expensesfor the reportswere incurred
2 For the foregoing reasons,
3 IT IS ORDERED that said Petition for Reconsideration be, and it hereby is, DENIED.
4
5 WORKERS' COMPENSATION APPEALS BOARD
6
7 ' . .
8 FRANK M.BRASS
9 I CONCUR,
10
13
14
15 tuU
SWE16 AUk1E W
17
18 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
19
20
21 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR
ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.22
3HANNA BROPHY23 MICHAEL NEWMAN
24 ,"'
25 jp
26
27
NELSON, Hollie 2

3. (Page I of 12)
STATE OF CALIFORNIA
Division of Workers' Compensation
Workers' Compensation Appeals Board
Case No. ADJ2764972
HOLLIE NELSON,
Applicant, REPORT AND RECOMMENDATION
ON PETITION FORVS.
RECONSIDERATION
CABRILLO UNIFIED SCHOOL DISTRICT;
KEENAN ASSOCIATES REDWOOD CITY;
Defendants.
I.
INTRODUCTION
Applicant, HOLLIE NELSON, born while employed on 03/27/2007, as a
Children's Center Director, in Woodside, California, by Cabrillo Unified School District,
sustained an injury arising out of and in the course of employment to the low back. The case-
in-chief resolved at trial on 03/06/2013. A lien trial was held on 07/31/2013 on the lien of
Michael Newman, D.C.
The Findings and Award issued on 08/26/2013. The Petitioner is Defendant, who has
timely filed the verified Petition for Reconsideration on 09/16/2013. The Petition for
Reconsideration is not legally defective. Lien Claimant has filed an Answer and said Answer
was not verified. It is noted that Dr. Newman has attached documents to his Answer which are
already in evidence. Dr. Newman is admonished to review 8 CCR Section 10842(c).
Petitioner/Defendant admits that Dr. Massey designated Dr. Newman to write a
permanent and stationary report but alleges that Dr. Massey did not timely or properly
incorporate the opinions of Dr. Newman and therefore they were inadmissible at trial and the
billing should be disallowed. Defendant further contends that it does not seem appropriate for
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4. (Page 2 of 12)
CASE ID4 , Z73-AD497 4
a primary treating physician to designate a doctor within another specialty to provide a
permanent and stationary report without an explanation as to how and why the different
specialty is appropriate. Defendant contends that Dr. Newman failed to appear at trial on
03/06/2013. Defendant contends that if found appropriate the reports of Dr. Newman should be
compensated pursuant to the Official Medical Fee Schedule (OMFS) and not as a medical-
legal report. Defendant contends that a primary treating physician does not have the right to
designate another doctor to write a medical-legal report. And finally, Defendant contends that
the charges by Dr. Newman are unreasonable and should not be allowed.
II.
FACTS
Applicant suffered an admitted industrial injury and received medical care from Dr.
Massey who was designated as the primary treating physician.
Applicant underwent nerve root decompression and thereafter underwent an inter-body
fusion.
On 11/30/2011 Dr. Massey designated Michael Newman, D.C., to write a permanent
and stationary report pursuant to 8CCR Regulation 9875(c) and (g). On 12/19/2011 Dr.
Newman sent the parties a letter informing them of an evaluation for Applicant on 02/02/2012
in order to complete a comprehensive medical report. Defendant objected to the evaluation,
the admissibility of the report, and any billing which would generate as a result.
On 03/20/2012 Dr. Newman evaluated Applicant and prepared a comprehensive report.
Defendants objected and requested an orthopedic panel from the Medical Unit. Applicant did
undergo a panel evaluation with Dr. Piasecki.
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The parties presented to a Mandatory Settlement Conference on 01/25/2013. Defendant
listed the lien of Dr. Newman as an issue and served the Pre-trial Conference Statement on Dr.
Newman. Dr. Newman did not appear at trial on the case-in-chief and Defendant obtained a
Notice of Intention to Dismiss Lien, which was timely objected to by Dr. Newman. The lien
was set for lien conference on 06/10/2013 and then for trial on 07/31/2013.
HI.
DISCUSSION
1. DEFENDANT ADMITS THAT DR. MASSEY DESIGNATED DR. NEWMAN
TO WRITE A PERMANENT AND STATIONARY REPORT PURSUANT TO LABOR
CODE SECTION 4061.5 AND 9785(c) AND (g) BUT ALLEGES THAT DR. MASSEY
DID NOT TIMELY OR PROPERLY INCORPORATE THE OPINIONS OF DR.
NEWMAN AND THEREFORE THE OPINIONS WERE INADMISSIBILE AT TRIAL
OF THE UNDERLYING CASE AND THE BILLING SHOULD BE DISALLOWED
As Defendant admits, pursuant to Labor Code Section 4061.5 a primary treating
physician may designate another physician to render opinions on all medical issues necessary
to determine eligibility for compensation. In the event there is more than one treating
physician, the primary treating physician shall prepare a report that incorporates the findings of
the various treating physicians. Title 8 California Code of Regulations (8 CCR) Section
9785(c) indicates that the primary treating physician or the physician designated by the
primary treating physician, shall make reports to the claims administrator. And 8 CCR Section
9785(g) indicates that upon a permanent and stationary determination, a report addressing the
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existence and extent of permanent impairment or limitations and need for future medical care
shall be prepared using either a PR-3, a PR-4 or in another manner providing the information
required by 8 CCR Section 10606.
Defendant is correct that when the parties appeared at trial on 03/06/2013 on the case-
in-chief there were settlement discussions with this Judge, and this Judge indicated that she
would not likely admit the reports of Dr. Newman since there was no report by Dr. Massey
incorporating the reports of Dr. Newman. While this information is accurate, this information
should not be included in Defendant's Petition for Reconsideration or considered by this Judge
or the WCAB, as these were off-the-record discussions to promote settlement and no formal
ruling on the admissibility of Dr. Newman's reports were made at trial on the case-in-chief on
03/06/2013. Defendant is impermissibly referring to facts not in evidence.
Labor Code Section 4061.5 provides no time limits for when a primary treating
physician must incorporate the reports of designated physicians.
Defendant asserts that pursuant to 8CCR Section 9785(e)(4) the primary treating
physician is allowed twenty (20) days to incorporate or comment upon the opinions of
"secondary" physicians. Dr. Massey did not incorporate the opinions of Dr. Newman until
03/06/2013, which is admittedly beyond the 20 days allowed. However, while the 03/06/2013
report from Dr. Massey was not admissible or utilized for the case-in-chief does not mean that
Dr. Newman, as a lien claimant, could not obtain said report for the purposes of supporting his
lien. While Applicant may have been barred from using Dr. Massey's 03/06/2013 report, it
does not follow that the lien claimant was also barred from requesting or utilizing the report
from Dr. Massey. Lien claimant's due process rights would be violated if it was restricted to
the discovery that was (or was not) undertaken by the injured worker. Further, there is no
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7. (Page 5 of 12)
evidence that a "secondary" physician pursuant to 8 CCR Section 9785(e)(4) is the same as a
"designated" physician pursuant to Labor Code Section 4061.5.
There was no error in allowing Dr. Massey to prepare a report incorporating the
opinions of Dr. Newman, or allowing Dr. Newman the opportunity to request, obtain and offer
said report at trial on the lien.
2. DEFENDANT ALLEGES THAT IT DOES NOT SEEM APPROPRIATE FOR
A PRIMARY TREATING PHYSICIAN TO DESIGNATE A DOCTOR WITHIN
ANOTHER SPECIALTY TO PROVIDE A PERMANENT AND STATIONARY
REPORT ABSENT EXPLANATION AS TO HOW AND WHY THAT DIFFERENT
SPECIALTY IS APPROPRIATE
Defendant admits that Labor Code Section 4061.5 allows a primary treating physician
to designate another physician to address medical issues to determine eligibility for
compensation. Defendant admits that there is no exception or limitation contained within
Labor Code Section 4061.5 and the Regulations do not provide for a framework on how a
primary treating physician is to select a designated physician.
Whether Applicant was represented or not, upon the perfection of a medical dispute,
Applicant was free to request a panel list from the Medical Unit. Applicant would have been
free to select the specialty. Suffering from an orthopedic injury, and having undergone
surgery, it would have been within the realm of reasonable for Applicant to have selected a
chiropractic evaluator. This issue has been tried before the WCAB several times, and the AD
has also addressed such disputes. There are published opinions that such a selection would be
appropriate. The workers' compensation system has safeguards; if the selected panel doctor
needs a referral to another specialist, then that can be obtained or arranged. IfApplicant had
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C rS7'ý:Ar.r',~i6 197
the right to select a chiropractor for an evaluation, then it follows that Dr. Massey should also
have had the right to designate a chiropractor for the preparation of comprehensive report.
Here, if Dr. Newman was not qualified to comment as requested by Dr. Massey, Dr.
Newman would have so indicated. Further, it is noted that Dr. Newman is on the list of
qualified doctors for panel examinations. There is no dispute that Dr. Newman is properly
qualified to render medical-legal opinions. Inserting a requirement that the primary treating
physician explain and justify his or her designation is an unnecessary and undue burden for
which there is no legal authority. As such, Defendant has not established a basis for the
granting of the Petition for Reconsideration.
3. DEFENDANT ALLEGES THAT ALTHOUGH THE LIEN OF DR. NEWMAN
WAS RAISED AS AN ISSUE AT TRIAL AT THE 01/17/2013 MANDATORY
SETTLEMENT CONFERENCE (MSC) AND WAS LISTED ON THE PRE-TRIAL
CONFERENCE STATEMENT WHICH WAS SERVED ON DR. NEWMAN BY
DEFENDANT. DR. NEWMAN FAILED TO OBJECT TO HIS LIEN BEING SET FOR
TRIAL AND FAILED TO APPEAR AT TRIAL ON 03/06/2013
Defendant is correct that the lien of Dr. Newman was listed as an issue on the Pre-Trial
Conference Statement. There is no dispute that Defendant served Dr. Newman with a copy of
the Pre-Trial Conference Statement.
It is well established that liens are being deferred given the new statutory scheme in
workers' compensation. Lien claimants are not required to be present at MSC unless their lien
is in excess of $25,000. Further, lien claimants do not become a "party" until the case-in-chief
is resolved. Gone are the days where liens are tried together with the case-in-chief on a
proforma basis. Now, there are special rules and filing fees for the activation of a lien and the
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9. (Page 7 of 12)
setting of a lien conference. Here, this Judge is convinced that Defendant attempted a "gotcha"
with this lien claimant. Lien claimant did not appear at MSC, was not required to be present,
and had no hand in the completion of the Pre-Trial Conference Statement. Lien claimant
designated no witnesses and listed no evidence. While the MSC Judge should have deferred
the issue of the lien, he did not. Failure to do so by the MSC Judge should not and does not tie
the hands of the lien claimant to where litigation of the lien is rendered meaningless. Further,
failure by the MSC Judge to defer a lien does not mean that the trial judge is required to try the
lien issue.
It is noted that 8 CCR Section 10562(e) indicates the criteria to be utilized when a lien
claimant fails to appear at trial. The WCJ may issue a notice of intention to dismiss the lien;
or, may hear the evidence and issue a notice of intention to submit; or, may defer the lien and
submit the case on the remaining issues. If the WCJ defers the lien, the WCJ shall either issue
a notice of intention to allow the lien in full or in part, or issue a notice of intention to dismiss
the lien, or continue the lien issue to a lien conference.
At the trial on the case-in-chief on 03/06/2013, Defendant sought and obtained a Notice
of Intention to Dismiss the lien. The Notice of Intention was served, and lien claimant timely
objected. The matter was then continued to a lien conference. Pursuant to 8 CCR Section
10562(e) this course of conduct by this WCJ was absolutely permissible. Defendant alleges
that the dismissal of the lien was appropriate and should have been upheld, but there was no
order of dismissal which issued; the only thing that issued was a Notice ofIntention to Dismiss.
There was a proper and timely objection to the Notice of Intention and therefore no dismissal
order issued.
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{DEDA4•-[]90 3C]3 AL4ý1- 05 297]
Further, there was no Petition for Removal filed by Defendant alleging substantial
prejudice or irreparable harm following the trial of 03/06/2013, or the setting of the matter for
lien conference following the timely objection by lien claimant to the Notice of Intention to
Dismiss. As such, any argument by Defendant at this stage is untimely and considered waived.
4. DEFENDANT ALLEGES THAT THE REPORTS OF DR. NEWMAN. IF
FOUND APPROPRIATE. SHOULD BE COMPENSATED PURSUANT TO THE OMFS
AS A TREATER REPORT RATHER THAN AS A MEDICAL-LEGAL REPORT
As set forth in the Opinion on Decision, here we have Applicant requesting a
comprehensive medical report from the primary treating physician Dr. Massey, and Dr. Massey
making a designation to Dr. Newman.
Defendant indicates that a medical-legal report is appropriate when completed by a
Qualified Medical Examiner, an Agreed Medical Examiner, or a primary treating physician for
the purpose of proving or disproving a contested claim and which meets the requirements of
paragraphs (1) through (5) of 8 CCR Section 9793. I agree. Here, Dr. Newman was
designated by the primary treating physician - and as indicated above an act contemplated by
and acceptable pursuant to the California Labor Code.
The definition of "contested claim" is varied, and can mean any of the following: a
rejected claim; a presumptively compensable claim; a claim where temporary disability has not
timely commenced or has not issued a timely notice of delay; a claim where liability is
accepted but there are disputed medical facts. Here, Applicant's claim was accepted. There
were disputed medical facts which existed on 11/30/2011, when Dr. Massey made the
designation. In Lien Claimant's Exhibit 1, Dr. Newman's initial report at page 7 indicates:
"She stated that Dr. Massey has wanted to provide to her water therapy and physical therapy.
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11. (Paga 9 of 12)
She stated that these treatment protocols have been denied." At page 11 Dr. Newman indicates:
"05-18-11. Noted request for water therapy was denied. The UR denial was discussed." And
later on the same page at the very bottom: "UR denial of aquatic therapy appeal dated 08-05-
11. Maureen Mackey, M.D. Cited lack of evidence of functional deficits and frequency and
duration of previous aquatic therapy." Clearly, there is evidence that there were disputed
medical facts. Defendant's representation in the Petition for Reconsideration at page 7, lines
27-28, and at page 8, lines 23-25, are a clear misrepresentation of the facts.
As set forth herein, Applicant had a "contested claim" on 11/28/2011 when Dr. Massey
made the designation to Dr. Newman. Further, Dr. Newman's reports were prepared by a
physician as defined by the Labor Code, were at the request of a party, and were capable of
proving or disproving a disputed medical fact, with the evaluation conducted and the reports
prepared before the disputed medical facts were resolved, and the reports served timely
pursuant to 8 CCR Section 9793(g) (1) through (5).
As all of the requirements have been met, it is appropriate for Dr. Newman to bill for
his evaluation and reports as a medical-legal expense, rather than services payable pursuant to
the OMFS.
Defendant should be admonished for representing that there were no medical facts in
dispute, when the evidence is clear that there were medical facts in dispute.
5. DEFENDANT ALLEGES THAT THE CHARGES REQUESTED BY DR.
NEWMAN ARE NOT REASONABLE AND SHOULD NOT BE ALLOWED
It is difficult, I would imagine, for a medical-legal evaluator to provide comparable
evidence for their billing as each injury is different, with different amounts ofmedical records,
and different needs such as apportionment, causation, and other factors to address in a medical-
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12. (Page 10 of 12)
C z ',<LI ,2 76 491'
legal report. Dr. Newman did not offer any "fair market evidence" or comparable evidence to
support his billings. However, there was something in the record which allowed me to assess
Dr. Newman's billings.
The best "comparable" which could be offered here was the report of PQME Dr.
Piasecki. As indicated in the Opinion on Decision, Dr. Newman billed a total of 15 hours for
the initial evaluation, review of 18 inches of medical records, and preparation of the initial
report, while identifying 4 billing factors which qualified his report as an ML104. Dr. Piasecki
billed 11 hours for the same evaluation and preparation of the report, but noted he only
reviewed 2 inches of records. Dr. Piasecki also billed an ML104. While the initial report of
Dr. Newman is shorter than the report of Dr. Piasecki, it is no less substantial or probative.
The medical-legal rates at issue are subject to schedule, so the rates cannot be in
dispute. The question then can only be whether it was reasonable for Dr. Newman to bill 4
additional hours for the initial report. Given that Dr. Newman reviewed 18 inches of records
while Dr. Piasecki reviewed only 2 inches of records, I find that the additional 4 hours billed
by Dr. Newman are reasonable.
Dr. Newman did issue a supplemental report and billed 4 hours for said report, which
included a review of additional records including the lengthy PQME report by Dr. Piasecki.
While there is nothing to compare this supplemental billing to as Dr. Piasecki did not issue a
supplemental report, I do not find that the time spent is excessive.
We must recall that what is at issue here is time spent. Other than the lien claimant's
sworn statement that the reports and bills are accurate, there really is nothing more which a
medical-legal evaluator can offer as evidence. The trial judge must be allowed discretion to
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13. (page 11 of 12)
determine ifthe evidence offered is sufficient, reasonable and meets the burden of proof. Here,
I find that it does.
IV.
RECOMMENDATION
The Petition for Reconsideration should be denied.
DATE: 09/25/2013
ADORALIDA PADILLA
workers' compensation judge
Served;
Date: 9-26-2013
Copy served by mail on all parties as are listed
on the current Official Address Record Attached.
By: zdl Wý
HOLLIE NELSON
ADJ2764972
Document ID: 3933441018019446784