Further Evolution of Navarro Panel Disputes

By Ada Rodriguez

In April 2014,  the WCAB issued an en banc opinion in Navarro v. City of Montebello, 73 Cal. Comp. Cases 418 (4/2/14) wherein they concluded that it is necessary to return to the same evaluator for new medical issues arising in the same claim or in connection with a petition to reopen that claim. They further concluded that there is no provision in the Labor Code that required the employee to return to the same doctor for evaluation of a subsequently asserted claim of injury

Approximately two years later, In panel decision Parker v. DSC Logistics, 2016 Cal. Wrk. Comp. P.D. LEXIS, the WCAB further developed Navarro, holding that where all claims are filed before the initial QME evaluation, Labor Code 4062.3(j) and Rule 35(c)(i) require that the initial QME address EACH CLAIM OF INJURY already filed regardless of when the alleged injury itself took place

Most recently, the applicant’s bar has been forging a new approach.  When an applicant is claiming a continuous trauma to multiple body parts and/or systems, the trend has been to file claim forms and applications for each body part/specialty with non-identical, but similar, dates of injury for each body part/system.  For example, a worker complaining of vomiting, gastrointestinal distress, nosebleeds and cough as a result of prolonged fume exposure would file one claim form and application for the gastrointestinal symptoms from 1-1-24 to 1-1-25 and a second claim form and application for the airway systems from 1-2-24 to 1-2-25.

The described procedure forces the claims adjuster to assign two separate claim numbers despite the claims being for the same time frame and against the same employer.  With the issuance of the two claim numbers, the applicant is free to electronically request two separate panels, each in a different specialty.  Discovery costs are driven up and the settlement value of the case to defense increases.

The question becomes whether this new tactic undermines the policy intended by Navarro and Parker and whether it bends the rules pertaining to filing of claims.  Arguably, there is nothing in the Labor Code requiring an applicant to file all complaints on one claim form and one application.  Clearly there is a professional duty of attorneys to file documents on behalf of their clients that are complete and accurate as to facts.  Shouldn’t those facts include an accurate time frame for the alleged continuous trauma claim?

California Penal Code Section 550(a)(2)  makes it a crime to “Knowingly present multiple claims for the same loss or injury, including presentation of multiple claims to more than one insurer, with an intent to defraud.” Considering the holdings in Navarro and Parker, could this new tactic be considered fraudulent for the purpose of obtaining multiple panels to drive up the costs of the case?

Looking from a different perspective, defendants may want to think twice about disputing this practice.  When two cases are filed for different body systems and there is no finding that that two are “inextricably intertwined”, the two injuries will stand independently.  There can be no combining or adding of the impairments for the two body systems as a result of having been filed as two separate injuries.  Therefore, if an applicant is hopeful to land in life pension range, such an award will not be possible.  Defendants would then be liable for the two lower-figure awards instead of a higher combined unapportioned Award.

In our opinion, if the body parts or conditions are of the same type as those previously plead in the case and there is a state panel QME who has already opined, we would argue that such pleadings as described above are in and of themselves “gamesmanship” and should be evaluated by the physician who is already in the case.  The applicant may argue that is not the case and that they are entitled to a new panel for the “new injury” to the “new body part or system” unless the defendant agrees to use an AME.  To which the defendant would argue the current SPQME in the case could be used as AME related to “new” injury and “new” body parts alone.    However, if the “new” date of injury and  “new body part or system” are just that NEW, then the pleadings as described here will cause the parties to obtain additional panels just as the applicant’s bar and the current case law affords.