Carlos Razo claimed that while employed as a driver by Las Posas Country Club during the period May 7, 2011 through May 7, 2012, he sustained a cumulative trauma (CT) injury to his psyche, sleep disorder, head, eyes, back, digestive system, hernia, knee, hands and head. After the employer denied the claim, a dispute arose over the panel QME selection process.

At trial the parties stipulated to the facts of the QME process. In the field of internal medicine, an original panel of QMEs initially issued on October 18, 2012. A replacement panel was ordered on November 30, 2012. The replacement panel issued on January 3, 2013. On January 11, 2013, defendant exercised its right to strike a member of the panel. On January 24, 2013, defendant designated one of the other panel members to be the QME. On January 15, 2013, applicant exercised his right to strike a member of the panel. In the field of orthopedics, an original panel of QMEs initially issued on October 18, 2012. A replacement panel was ordered on November 13, 2012. The replacement panel issued on January 3, 2013. On January 11. 2013, defendant exercised its right to strike a member of the panel. On January 14, 2013, defendant designated one of the other panel members to be the QME. On January 15, 2013, applicant exercised his right to strike a member of the panel. The parties further stipulated that all dates with respect to the issuance of the QME panels reflect the dates that were written on the panel forms sent to the parties, and not the receipt dates.

The dispute was submitted on the issues of whether applicant timely exercised the right to strike a member of the panel pursuant to Labor Code section 4062.2(c), and “whether that code section in its 2012 version or … in its 2013 version is applicable[.]” In the May 28, 2013 Findings and Order, the WCJ found that applicant timely exercised his right to strike members from replacement QME internal medicine and orthopedic panels assigned on January 3, 2013. The WCJ applied former section 4062.2(c). In his Opinion on Decision, the WCJ explained that to make a timely strike, applicant had 10 days after assignment of the QME panel on January 3, 2013 plus “three working days,” i.e., until January 16, 2013. Since applicant made his strike on January 15, 2013, it was timely.

The WCAB agreed with the WCJ that applicant’s strike was timely in the panel decision of Razo v Las Posas Country Club. However, it disagreed that former section 4062.2 applies. Instead,it applied section 4062.2 as amended by SB 863.

SB 863 became effective January 1, 2013. However, section 84 of SB 863 states: “This act shall apply to all pending matters, regardless of date of injury, unless otherwise specified in this act, but shall not be a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.” (Stats. 2012, ch 363, § 84.). Because section 4062.2 governs the panel QME process, it is a procedural statute. Therefore, its application in this case is prospective, not retroactive.

The WCAB also held that pursuant to the discussion of Code of Civil Procedure (CCP) I 013 in Messele v.Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956 (Appeals Board en bane) (“Messe/e”), that section 4062.2(c) allows a party ten days from the Administrative Director’s assignment of a QME panel, plus five days for U.S. mail, to strike a name from the QME panel. In Messe/e, the Board held that when the first written AME proposal is ”made” by mail or by any method other than personal service, the period for seeking agreement on an AME under former Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California. Thus it construed the phrase in amended section 4062.Z(c), “assignment of the panel by the Administrative Director,” to mean not only assignment but also service of the names of the panel QMEs on the parties by U.S. mail.

The panel was aware that in Alvarado v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1142 (writ den.) the Board panel found CCP section 1013 inapplicable to extend the time for a party to strike a physician’s name from a QME panel because the operative trigger for the time period was not service, but assignment of the panel. The Board stated that “the time limits prescribed by Labor Code § 4062.2(c) run from the date of assignment of the three-member panel, not from service of the panel.” (72 Cal.Comp.Cases at p. 1145.). Alvarado is distinguishable because it involved application of former section 4062.2. which gave the parties a right to strike a name from the panel “within three working days of gaining the right to do so[.]” The statute now provides that each party has 10 days from assignment of the panel and, as construed here, an additional five calendar days for service of the assignment by U.S. mail.

Appellant Chris Fopiano sued applicant attorneys Leonard Stern and Steven Barry for legal malpractice arising out of their representation of Fopiano in a workers’ compensation case. He claimed they improperly waived his right to seek reasonable disability accommodations from his employer. The trial court sustained the attorneys’ demurrer without leave to amend on the ground that the action was time-barred. Fopiano appealed, and the Court of Appeal reversed the dismissal and reinstated the case in the unpublished opinion of Fopiano v. Stern.

Fopiano suffered pulmonary injuries while working for his employer, Eastern Municipal Water District (EMWD). In July 2008, he hired attorneys Stern and Barry to represent him in a workers’ compensation case against EMWD. In January 2011, in the course of their representation of Fopiano, he alleges they waived his right to seek reasonable accommodations for his disability, although Fopiano had never discussed this with respondents, and did not know he possessed such a right. Additionally, Stern allegedly advised Fopiano that if he did not request early retirement, his employer could force him to retire. On March 14, 2011, Fopiano accepted an award of $69,813.62 for his permanent disability and voluntarily retired.

Soon thereafter, on March 25, 2011, Fopiano filed a pre-complaint questionnaire with California’s Department of Fair Employment and Housing (DFEH) to institute a disability discrimination complaint against EMWD. EMWD was afforded an opportunity to respond and denied Fopiano’s allegations of disability discrimination. EMWD asserted that Fopiano was not offered reasonable accommodations for his disability because respondents waived his right to seek reasonable accommodations and indicated to EMWD that Fopiano would instead retire.

Fopiano sued his comp attorneys on May 24, 2012, alleging they committed legal malpractice by waiving his right to seek reasonable accommodations from EMWD that would have allowed him to continue working. His attorneys demurred, arguing the allegations were insufficient to state a cause of action because they failed to allege when Fopiano learned of the attorneys’ wrongful conduct. The trial court sustained the demurrer to an amended complaint without leave to amend, finding Fopiano’s claim was time-barred because the fact that he filed a DFEH pre-complaint questionnaire demonstrated he knew of his attorneys’ malpractice at least by March 2011, which was more than one year before he filed his complaint. Fopiano timely appealed from the resulting judgment of dismissal.

The Court of Appeal reversed. The limitations period for legal malpractice is set forth in Code of Civil Procedure section 340.6, which states, in relevant part: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. . . .”

The allegations in the second amended complaint did not show Fopiano’s claim was time-barred. Fopiano’s complaint alleged Stern erroneously counseled Fopiano to retire and negligently waived his right to seek reasonable accommodations for his disability. DFEH allegedly informed Fopiano in October 2011 of correspondence between respondents and EMWD in which respondents effected this waiver. Fopiano filed his complaint less than a year later, in May 2012. Assuming these allegations are true,Fopiano discovered respondents’ wrongful conduct within the one-year limitations period.

In 2009, Ismael Navarro filed an application and claim form alleging a cumulative injury from February 9, 2008 to February 9, 2009 to his back and ear and was evaluated by panel QME J. Yogaratnam, M.D., Then in 2010, applicant filed applications for adjudication with claim forms alleging a specific injury of June 1, 2010 to his back, lower extremities and legs and a specific injury of August 31, 2010 to his back and left leg.

In 2012, defendant petitioned to compel an evaluation of applicant’s two subsequent claims of injury by original panel QME Dr. Yogaratnam, but it did not seek to have applicant reevaluated regarding his previous claim of cumulative injury. Applicant objected. The WCJ found that applicant was entitled to a new panel QME in his specific injury cases and that QME Rule 35.5(e) that seems to require an applicant to return to the original QME did not apply.

Defendant filed a Petition for Removal contending that Rule 35.5(e) applies and because Rule 35.5(e) applies, applicant must return to original panel QME Dr. Yogaratnam. The WCAB in the En Banc decision of Ismael Navarro v.City of Montebello, administered by Corvel Corporation disagreed with defendant and affirmed the order for a new panel.

The WCAB reviewed the Labor Code provisions for the use of a QME and concluded “we see no provision in the Labor Code that requires an employee to return to the same evaluator for a subsequent claim of injury. And, we see no provision that distinguishes between procedures for evaluation of claims of injury based on the same or different body parts”.Thus the Labor Code does not require an employee to return to the same evaluator for a subsequent claim of injury.

“Rule 35.5(e) appears to impose an unwarranted limitation on the Labor Code, particularly sections 4060(a), (c), and (d), 4062.1, 4062.2, 4062.2(a), 4062.3(j), 4062.3(k), 4064(a), and 4067. Thus, Rule 35.5(e) appears to be invalid to the extent that it imposes an additional requirement that an employee return to the same evaluator when a new injury or illness is claimed that involves the same body parts and the same parties.” Applicant’s two claims of specific injury were reported after the original evaluation but before a subsequent evaluation by a new evaluator. Thus, under sections 4062.3(j) and section 4064(a), it appears that applicant is entitled to be evaluated by one new evaluator for his two subsequent claims of injury.

The WCAB therefore indicated its intent to rule that “The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code and that this requirement is therefore invalid.” The Petition for Removal was granted, and the parties were given 20 days notice of this intended ruling and an opportunity to respond.

In the event that this case becomes a final ruling, this will be the second QME rule to be declared invalid. In 2010, the En Banc decision of Amelia Mendoza v. Huntington Hospital, Permissibly Self-Insured; and Sedwick Claims Management Services, Inc. declared rule 30 to be invalid. The Appeals Board held in that case that: (1) California Code of Regulations, title 8, section 30(d)(3) (Administrative Director Rule 30(d)(3)), which states that when a claim has been entirely denied by the defendant only the employee may request a panel of Qualified Medical Evaluators, is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b); (2) the time limits of section 4062(a) for objecting to a treating physician’s medical determination do not apply when the injury has been entirely denied by the defendant; and (3) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability.

Solus Industrial Innovations LLC makes plastics at an Orange County manufacturing facility. Solus had moved some production to Rancho Santa Margarita, Calif., from Aston, Pa., in 2007 and was in a hurry to begin production. The company purchased a water heater for $541.66 from a Lowe’s home improvement store to avoid the cost and permitting requirements of a proper installation. Use of an industrial water heater would have required permits and the installation of a natural gas line, and it would have delayed the start of the Rancho Santa Margarita extrusion of plastic components for conveyor chains and sprockets. In March 2009, that water heater exploded, killing two workers instantly in what district attorney refers to as an “untimely and horrific death.”

Solus former plant manager Carl E. Richardson and former maintenance supervisor Roy Faulkinbury were responsible for removal of an automatic safety shut-off protection and installation of a temperature control device to force the heater to operate above its capacity. The heater had leaked often and blown a safety valve but was kept in service. On March 19, 2009 the water heater exploded killing two an injuring a third employee. The tank pierced the 30-foot-high roof and landed about 25 feet from its original location. The blast hurled other equipment and materials against the concrete-block walls causing extensive damage and effectively destroying the facility, which never resumed operations.

The two pleaded guilty on Feb. 14 to two felony violations of California Labor Code section 6425, subdivision (a). They agreed to collectively pay $450,000 to families of the victims and individually do 250 hours of community service. (See People v. Faulkinbury, (Super. Ct. Orange County, 2012, No. 12CF0698).) No party challenged the district attorney’s standing to bring these or other appropriate criminal prosecutions.

The district attorney’s office also filed a civil lawsuit against Solus, Emerson and subsidiary Emerson Power Transmission Corp. The complaint contains four causes of action, all based on the same worker health and safety standards placed at issue in the administrative proceedings. The third cause of action alleges that Solus’s failure to comply with workplace safety standards amounts to an unlawful, unfair and fraudulent business practice under Business and Professions Code section 17200, and the district attorney requests imposition of civil penalties as a consequence of that practice, in the amount of up to $2,500 per day, per employee, for the period from November 29, 2007 through March 19, 2009. The fourth cause of action alleges Solus made numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards, and as a result of those false and misleading statements, Solus was allegedly able to retain employees and customers in violation of Business and Professions Code section 17500. Again, the district attorney requests imposition of civil penalties as a consequence of this alleged misconduct, in the amount of up to $2,500 per day, per employee, for the period from November 29, 2007 through March 19, 2009.

Solus demurred to these two causes of action, contending they were preempted under Fed/OSHA, because a prosecutor’s pursuit of civil penalties under the UCL is not part of California’s workplace safety plan approved by the Secretary. The trial court disagreed, and overruled the demurrer to the district attorney’s two causes of action based on violations of the UCL. The Court of Appeal reversed in the published opinion of Solus Industrial Innovations LLC v The Superior Court of Orange County.

Under the supremacy clause of the United States Constitution (art. VI, cl. 2), Congress has the power to preempt state law concerning matters that lie within the authority of Congress. On the matter of workplace safety regulation, the federal government’s intent to preempt is clear: However, “Congress expressly saved two areas from federal pre-emption. . . . [T]he Act does not ‘supersede or in any manner affect any workmen’s compensation law [and] the Act does not ‘prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no [federal] standard is in effect.’” Moreover, Congress also gave states the option of side-stepping federal preemption entirely, by allowing any state which “desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue [to] submit a State plan for the development of such standards and their enforcement.”

After a review of the facts and law on preemption, the Court of Appeal concluded that state regulation of workplace safety standards is explicitly preempted by federal law under the OSH Act, and that consequently California is entitled to exercise its regulatory power only in accordance with the terms of its federally approved workplace safety plan. Thus the district attorney cannot presently rely on the UCL to provide an additional means of penalizing an employer for its violation of workplace safety standards.

An injured worker, or someone she or he designates, may request independent medical review (IMR) if utilization review (UR) denies or modifies a requested medical treatment for an accepted claim. The claims administrator must send the injured worker a notice of the UR denial along with a partially completed IMR request form. To request IMR, the worker must submit the signed application for IMR and mail the original signed Application for Independent Medical Review and a copy of the utilization review denial of treatment within 30 days of receiving the utilization denial:

To date, when an IMR application is received without a copy of the UR denial, a reminder letter is sent to the worker requesting the UR denial and allowing an additional 15 days to comply with this requirement.

As of March 1, 2014, a revised IMR application must be sent by the claims administrator to the injured worker. The revised form now clearly advises that the copy of the UR denial must be included with the IMR application. Therefore, beginning April 1, 2014, DWC will cease issuing reminder letters if the UR denial is not included with the submittal of an IMR application and will instead advise the worker that the IMR application is ineligible.

Similarly, when a provider submits a request for independent bill review (IBR), the provider is required to include and index the following documents:

• The original billing itemization and original supporting documentation
• The explanation of review provided in response to the original billing
• The request for second bill review and original documentation supporting second review
• The explanation of review provided in response to the second bill request
• If applicable, the relevant contract provisions for reimbursement rates.

To date, when a request for IBR is received without the required documentation, a reminder letter is sent to the provider requesting the documentation and allowing an additional 15 days to comply with this requirement. The final IBR regulations became effective on Feb. 13, 2014. For IBR requests that are received on or after Feb. 13, 2014, DWC will cease issuing reminder letters if the required documentation is not included with the submittal of an IBR application and will instead advise the provider that the IBR request is ineligible.

These changes are being made in an effort to better serve the public by streamlining the process and focusing efforts on issuing determinations in a timely manner.