Ismael Navarro v. City of Montebello, administered by Corvel Corporation

Annotate this Case

Download PDF

1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 5 ISMAEL NAVARRO, 6 Applicant, 7 vs. 8 9 CITY OF MONTEBELLO, administered by CORVEL CORPORATION, 10 Case Nos. ADJ6779197 ADJ7472140 ADJ7964720 (Long Beach District Office) OPINION AND ORDER GRANTING REMOVAL; NOTICE OF INTENTION TO SUBMIT FOR DECISION (En Banc) Defendants. 11 12 Defendant seeks removal in response to a Findings of Fact issued by a workers' compensation 13 administrative law judge (WCJ) on October 31, 2013. The WCJ found in pertinent part that applicant 14 was entitled to a new panel Qualified Medical Evaluator (QME) for his two new injury claims and that 15 Rule 35.5(e)1 did not apply. 16 Defendant contends that all of applicant’s three claimed injuries involve the same parties and one 17 of the same body parts and, therefore, Rule 35.5(e) requires that applicant be evaluated for his two new 18 claimed injuries by the original panel QME for his original claimed injury. 19 To secure uniformity of decision in the future, the Chairwoman of the Appeals Board, upon a 20 majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. 21 22 23 24 25 26 27 30 Division of Workers' Compensation – Qualified Medical Evaluator Regulations 35.5(e) (Cal. Code Regs,, tit, 8, § 35.5(e)) hereafter, Rule 35.5(e) states that: 1 In the event a new injury or illness is claimed involving the same type of body part or body system and the parties are the same, or in the event either party objects to any new medical issue within the evaluator's scope of practice and clinical competence, the parties shall utilize to the extent possible the same evaluator who reported previously. 1 (Lab. Code, § 115.)2 2 Based upon our review of the relevant statutes and case law, we intend to hold that: 3 (1) 4 The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury. 5 (2) The requirement in Rule 35.5(e) that an employee return to the same evaluator 6 when a new injury or illness is claimed involving the same parties and the same 7 type of body parts is inconsistent with the Labor Code and that this requirement is 8 therefore invalid.3 9 In order to give the Division of Workers’ Compensation (DWC) and the parties an opportunity to 10 address the issues raised by our proposed holdings as to the Labor Code and Rule 35.5(e), we grant 11 removal and issue a notice of intention (NIT) to allow DWC and the parties twenty (20) days to respond. 12 All responses shall be limited to the issue of whether Rule 35.5(e) is inconsistent with the Labor Code and 13 therefore invalid. 14 BACKGROUND 15 Applicant is employed as a police officer for defendant and all of his claims of injury were filed 16 during his employment with defendant. All of applicant’s claims of injury were filed while he was 17 represented by an attorney. 18 On February 12, 2009, applicant filed an application for adjudication with a Workers' 19 Compensation Claim Form DWC 1 (claim form) alleging a cumulative injury from February 9, 2008 to 20 February 9, 2009 to his back and ear (ADJ6779197). On September 14, 2009, applicant was evaluated 21 by panel QME J. Yogaratnam, M.D., in that case. 22 On October 4, 2010, applicant filed applications for adjudication with claim forms alleging a 23 2 24 25 26 27 30 En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and WCJs. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6 [67 Cal.Comp.Cases 236]; see Govt. Code, § 11425.60(b).) In addition to being adopted as a precedent decision in accordance with Labor Code section 115 and Appeals Board Rule 10341, this en banc decision is also being adopted as a precedent decision in accordance with Government Code section 11425.60(b). 3 Unless otherwise stated, all statutory references are to the Labor Code. NAVARRO, Ismael 2 1 specific injury of June 1, 2010 to his back, lower extremities and legs (ADJ7964720) and a specific 2 injury of August 31, 2010 to his back and left leg (ADJ7472140).4 3 On November 20, 2012, defendant petitioned to compel an evaluation of applicant’s two 4 subsequent claims of injury by original panel QME Dr. Yogaratnam, but it did not seek to have applicant 5 reevaluated regarding his previous claim of cumulative injury. Applicant objected on November 28, 6 2012. On May 23, 2013, the parties proceeded to trial on the issue of whether applicant must return to 7 original panel QME Dr. Yogaratnam for his subsequent specific injury claims; the issue was ultimately 8 submitted for decision on August 20, 2013. 9 10 On October 31, 2013, the WCJ found in pertinent part that applicant was entitled to a new panel QME in his specific injury cases and that Rule 35.5(e) did not apply. 11 Thereafter, defendant timely filed its petition for removal. We received an Answer from 12 applicant. The WCJ prepared a Report and Recommendation (Report) recommending that removal be 13 denied. 14 DISCUSSION 15 I. The Labor Code does not require an employee to return to the same QME for an evaluation of a subsequent claim of injury. 16 17 Defendant contends that Rule 35.5(e) applies and because Rule 35.5(e) applies, applicant must 18 return to original panel QME Dr. Yogaratnam. However, even though the sole basis of defendant’s 19 argument is that Rule 35.5(e) applies, we consider the relevant statutory provisions before we consider 20 the application of Rule 35.5(e). 21 “A fundamental rule of statutory construction is that a court should ascertain the intent of the 22 Legislature so as to effectuate the purpose of the law.” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 23 Cal.4th 382, 387 [58 Cal.Comp.Cases 286] (DuBois); Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 24 54 Cal.3d 288, 294 [56 Cal.Comp.Cases 476]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 25 The Employer’s Section on the lower half of all three of the claim forms is blank. There is no information in the record regarding whether any other claim forms were received by or completed by defendant. Each claim form was served on defendant at the time it was filed at the Workers’ Compensation Appeals Board (WCAB). 4 26 27 30 NAVARRO, Ismael 3 1 222, 230 [38 Cal. Comp. Cases 652].) “In construing a statute, our first task is to look to the language of 2 the statute itself. (citation) When the language is clear and there is no uncertainty as to the legislative 3 intent, we look no further and simply enforce the statute according to its terms.” (DuBois, supra, 5 4 Cal.4th at p. 387; accord, Atlantic Richfield Co. v. Workers’ Comp. Appeals Bd. (Arvizu) (1982) 31 5 Cal.3d 715, 726 [47 Cal. Comp. Cases 500]; see Code Civ. Proc., §§ 1858, 1859; Rhiner v. Workers’ 6 Comp. Appeals Bd. (1993) 4 Cal.4th 1213, 1217 [58 Cal.Comp.Cases 172].) Hence, we begin by 7 reviewing the language of the Labor Code sections on medical-legal evaluations by panel QMEs. Section 4060(a) provides in pertinent part that “this section shall apply to disputes over the 8 9 compensability of any injury. . .” 10 Section 4060(c) states that: 11 If a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2. (Italics added.) 12 13 Section 4060(d) states that: 14 If a medical evaluation is required to determine compensability at any time after the claim form is filed, and the employee is not represented by an attorney, the employer shall provide the employee with notice either that the employer requests a comprehensive medical evaluation to determine compensability or that the employer has not accepted liability and the employee may request a comprehensive medical evaluation to determine compensability. Either party may request a comprehensive medical evaluation to determine compensability. The evaluation shall be obtained only by the procedure provided in Section 4062.1. (Italics added.) 15 16 17 18 19 Section 4062.2(a) states that: 20 Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section. (Italics added.) 21 22 23 24 Preliminarily then, section 4060(a), (c) and (d) and section 4062.2(a)5 all refer to a single claim 25 form, injury or claimed injury and appear to require that any medical-legal evaluations to determine 26 27 30 5 Unlike section 4062.2, section 4062.1 does not contain a subdivision like section 4062.2(a) for unrepresented employees, but sections 4060(a) and (d) and section 4061(i) all specify that section 4062.1 applies to unrepresented employees. NAVARRO, Ismael 4 1 compensability of that injury or claimed injury occur under the procedures provided in sections 4062.1 or 2 4062.2. 3 Section 4062.3(j) states that: 4 Upon completing a determination of the disputed medical issue, the medical evaluator shall summarize the medical findings on a form prescribed by the administrative director and shall serve the formal medical evaluation and the summary form on the employee and the employer. The medical evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee's initial appointment with the medical evaluator. (Italics and underscoring added.) 5 6 7 8 Section 4064(a) states that: 9 The employer shall be liable for the cost of each reasonable and necessary comprehensive medical-legal evaluation obtained by the employee pursuant to Sections 4060, 4061, and 4062. Each comprehensive medicallegal evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms, except medical treatment recommendations, which are subject to utilization review as provided by Section 4610, and objections to utilization review determinations, which are subject to independent medical review as provided by Section 4610.5. (Italics and underscoring added.) 10 11 12 13 14 15 Considering section 4062.3(j) and section 4064(a) together, both sections state that a medical 16 evaluation shall address “all medical issues arising from all injuries reported on one or more claim 17 forms.”6 Both sections refer to an injury reported on a claim form as the operative act, and not to a date 18 of injury, a report of injury other than on a claim form7, or the filing of an application with the WCAB. 19 Under section 5401, an employer must provide a claim form and an injured worker must file a claim form 20 with an employer.8 Hence, the reported date under sections 4062.3(j) and 4064(a) must be the filing date 21 22 Although section 4064(a) does not include the phrase “before the appointment takes place,” since section 4064(a) provides that these claims of injury had to have been “reported,” those claims had to have been made before the evaluation. 6 23 24 7 25 Section 5400 concerns notice of injury with no reference to a claim form. Section 5402 concerns notice and knowledge of injury and section 5402(b) provides for a ninety day period after “the date the claim form is filed under [s]ection 5401.” 26 8 27 30 Section 5401(a) requires that an employer must provide a claim form “[w]ithin one working day of receiving notice or knowledge of injury under [s]ection 5400 or 5402.” NAVARRO, Ismael 5 1 as defined by section 5401 because only section 5401 refers to filing a claim form. Because the date the 2 claim form is filed with employer is the operative act, it appears that the date of filing of the claim form 3 determines which evaluator must consider which injury claim(s). This is significant in that the date a 4 claim of injury is reported is often not the same as the date that an injury is claimed to have occurred. 5 Consequently, it is foreseeable that a claim might be reported after an original evaluation but be for a 6 claim of injury on a date before the original evaluation, and even in those circumstances, the result would 7 appear to be that the date the claim is reported is still the operative date. 8 Next, section 4062.3(k) states that: 9 If, after a medical evaluation is prepared, the employer or the employee subsequently objects to any new medical issue, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute. (Italics added.) 10 11 12 As discussed above, sections 4062.3(j) and 4064(a) provide that a medical evaluation shall 13 address “all medical issues arising from all injuries reported on one or more claim forms,” and in keeping 14 with that statutory language, section 4062.3(k) directs an employee to return to the same evaluator who 15 conducted the previous evaluation when a new medical issue arises relating to the previously reported 16 injury claim(s). As a matter of construction, a prior evaluation of that claimed the previously reported 17 injury claim(s) must have already occurred at the time the medical issue arises, and consequently it 18 appears that the employee must then return to the same evaluator for the same reported injury claim(s).9 19 In contrast, there is no reference in section 4062.3(k) to subsequent claims of injury. 20 Section 5401(c) states that: 21 “The completed claim form shall be filed with the employer by the injured employee, or, in the case of death, by a dependent of the injured employee, or by an agent of the employee or dependent. . . .[A] claim form is deemed filed when it is personally delivered to the employer or received by the employer by firstclass or certified mail. A dated copy of the completed form shall be provided by the employer to the employer's insurer and to the employee, dependent, or agent who filed the claim form.” 22 23 24 9 25 26 27 30 Similarly, section 4062(a) provides in pertinent part that when a party objects to a medical issue not covered by sections 4060 or 4061 and not subject to section 4610, a medical evaluation must be obtained under the procedures in sections 4061.1 and 4062.2. And, section 4062(a) only refers to medical issues and not to subsequent claims of injury or body parts. In addition, section 4061(i) also requires that evaluations of permanent impairment be obtained in accordance with sections 4061.1 and 4062.2. NAVARRO, Ismael 6 1 2 3 4 5 6 7 8 9 10 11 Finally, section 4067 states that: If the jurisdiction of the appeals board is invoked pursuant to Section 5803 upon the grounds that the effects of the injury have recurred, increased, diminished, or terminated, a formal medical evaluation shall be obtained pursuant to this article. “When an agreed medical evaluator or a qualified medical evaluator selected by an unrepresented employee from a three-member panel has previously made a formal medical evaluation of the same or similar issues, the subsequent or additional formal medical evaluation shall be conducted by the same agreed medical evaluator or qualified medical evaluator, unless the workers' compensation judge has made a finding that he or she did not rely on the prior evaluator's formal medical evaluation, any party contested the original medical evaluation by filing an application for adjudication, the unrepresented employee hired an attorney and selected a qualified medical evaluator to conduct another evaluation pursuant to subdivision (b) of Section 4064, or the prior evaluator is no longer qualified or readily available to prepare a formal medical evaluation, in which case Sections 4061 or 4062, as the case may be, shall apply as if there had been no prior formal medical evaluation. (Italics added.) 12 Section 4067 sets forth specific procedures governing the reopening of a claim, and like section 13 4062.3(k), requires that an employee return to the same evaluator for new medical issues arising out of a 14 particular injury claim. Section 4067 also provides that under certain circumstances an employee does 15 not have to return to the same evaluator even when it is for an evaluation of the same claim of injury, and 16 when that occurs, sections 4061 and 4062 apply “as if there had been no prior formal medical 17 evaluation.” Like section 4062.3(k), there is no reference in section 4067 to subsequent claims of injury. 18 Accordingly, after review of the pertinent statutes, we intend to conclude that the Labor Code 19 requires that all medical-legal evaluations be obtained as set forth under sections 4062.1or 4062.2 and 20 that the Labor Code requires that an evaluator discuss all medical issues arising from all reported claims 21 of injury at the time of an evaluation. Further, we intend to conclude that the Labor Code generally 22 requires that an employee return to the original evaluator when a new medical issue arises in the same 23 claim of injury and when an employee reopens the same claim. But, we see no provision in the Labor 24 Code that requires an employee to return to the same evaluator for a subsequent claim of injury. And, we 25 see no provision that distinguishes between procedures for evaluation of claims of injury based on the 26 same or different body parts. Thus, we intend to conclude that the Labor Code does not require an 27 employee to return to the same evaluator for a subsequent claim of injury. 30 NAVARRO, Ismael 7 1 II. 2 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 this requirement is therefore invalid. 3 We now consider Rule 35.5(e) in light of our intent to conclude that the Labor Code does not 4 require an employee to return to the same evaluator for a subsequent claim of injury. As discussed 5 above, we intend to conclude that the Labor Code provisions concerning medical-legal evaluations only 6 require the employee to return to the same evaluator when a new medical issue arises out of a previously 7 evaluated injury. In contrast, Rule 35.5(e) imposes an additional requirement that an employee return to 8 the same evaluator when a new injury or illness is claimed that involves the same body parts and the 9 same parties. 10 The WCAB has exclusive original jurisdiction to determine the validity of regulations adopted by 11 the Administrative Director (AD). (Lab. Code, § 5300(f); see Mendoza v. Huntington Hospital Workers' 12 Comp. Appeals Bd. (2010) 75 Cal.Comp.Cases 634, 640 (Appeals Board en banc) [discussing the 13 WCAB’s jurisdiction to determine the validity of Rule 30(d)(3)].) 14 In considering the validity of a regulation, “our task is to inquire into the legality of the . . . 15 regulation, not its wisdom.” (Moore v. Cal. State Bd. of Accountancy (1992) 2 Cal.4th 999, 1014; accord, 16 State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1040 (State Farm).) 17 Thus, we are “limited to determining whether the regulation (1) is within the scope of the authority 18 conferred (Gov. Code, § 11373) and (2) is reasonably necessary to effectuate the purpose of the statute.” 19 (State Farm, 32 Cal.4th at p. 1040 [quoting from Agric. Labor Relations Bd. v. Superior Court (1976) 16 20 Cal.3d 392, 411 (Agric. Labor Relations Bd.) (internal citations and quotation marks omitted)].) 21 “Although in determining whether . . . regulations are reasonably necessary to effectuate the statutory 22 purpose we will not intervene in the absence of an arbitrary or capricious decision, ‘we need not make 23 such a determination if the regulations transgress statutory power.’” (Cal. Assn. of Psychology Providers 24 v. Rank (1990) 51 Cal.3d 1, 11–12 (Cal. Assn. of Psychology Providers [quoting from Morris v. Williams 25 (1967) 67 Cal.2d 733, 749 (Morris) (italics added)].) 26 With regard to this latter point, we are guided by two of the central provisions of the 27 administrative rule-making provisions of the Administrative Procedures Act [APA] (Gov. Code, § 11340 30 NAVARRO, Ismael 8 1 et seq.), to which the AD is subject.10 Government Code section 11342.2 provides that “no regulation 2 adopted is valid or effective unless consistent and not in conflict with the statute.” Hence, it has been 3 said that “[w]hen a statute confers upon a state agency the authority to adopt regulations . . . , the 4 agency's regulations must be consistent, not in conflict with the statute” (Mooney v. Pickett (1971) 4 5 Cal.3d 669, 679) and that “[a] regulation that is inconsistent with the statute it seeks to implement is 6 invalid.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269.) “No matter how altruistic its motives, an 7 administrative agency has no discretion to promulgate a regulation that is inconsistent with the governing 8 statutes.” (Mendoza, supra, 75 Cal.Comp.Cases at p. 640; see Agric. Labor Relations Bd., supra, 16 9 Cal.3d at p. 419.) Government Code section 11342.1 provides that “[e]ach regulation adopted, to be 10 effective, shall be within the scope of authority conferred.” Thus, it has been said that “administrative 11 regulations which exceed the scope of the enabling statute are invalid and have no force or life” (Woods 12 v. Superior Court (1981) 28 Cal.3d 668, 680) and that “[a]dministrative regulations that . . . enlarge [a 13 statute's] scope are void and courts not only may, but it is their obligation to strike down such 14 regulations.” (Cal. Assn. of Psychology Providers, supra, 51 Cal.3d at p. 11 [quoting from Morris, supra, 15 67 Cal.2d at p. 748].) “[T]he Legislature possesses the plenary constitutional authority to create and 16 enforce a workers’ compensation system” and accordingly, a regulation promulgated by the AD which 17 contradicts the Workers' Compensation Act is invalid. (Boehm & Associates v. Workers' Comp. Appeals 18 Bd. (Lopez) (1999) 76 Cal.App.4th 513, 519 [64 Cal.Comp.Cases 1350].) 19 As set forth in our discussion above, we intend to conclude that the Labor Code requires that all 20 medical-legal evaluations must be obtained as set forth under sections 4062.1 or 4062.2 and that an 21 evaluator discuss all medical issues arising from all reported claims of injury at the time of an evaluation. 22 And, we intend to conclude that the Labor Code generally requires that an employee return to the original 23 evaluator when a new medical issue arises in the same claim of injury and when an employee reopens the 24 same claim. But, the Labor Code makes no reference to same or different body parts. Therefore, unlike 25 26 27 30 10 The APA makes every regulation subject to its rulemaking provisions unless expressly exempted by statute. (Gov. Code, § 11346.) By statute, DWC is exempted only from the APA's provision regarding Superior Court review of agency regulations. (Gov. Code, § 11351(c).) NAVARRO, Ismael 9 1 Rule 35.5(e), it does not appear that the Labor Code requires an employee who files another claim of 2 injury or illness to return to the original evaluator even when the subsequent claim of injury involves the 3 same body parts and the same parties. The language of the statutes is mandatory, and thereby controls. 4 Rule 35.5(e) appears to impose an unwarranted limitation on the Labor Code, particularly 5 sections 4060(a), (c), and (d), 4062.1, 4062.2, 4062.2(a), 4062.3(j), 4062.3(k), 4064(a), and 4067. Thus, 6 Rule 35.5(e) appears to be invalid to the extent that it imposes an additional requirement that an 7 employee return to the same evaluator when a new injury or illness is claimed that involves the same 8 body parts and the same parties. While parties are not precluded from agreeing to return to the same 9 evaluator for new claims of injury to the same body parts, based on the foregoing we intend to conclude 10 that an employee may be evaluated by a new evaluator for each injury or injuries reported on a claim 11 form after an evaluation has taken place. In keeping with the limitations set forth in sections 4062.3(j) 12 and 4064(a), at the time of an evaluation the evaluator shall consider all issues arising out of any claims 13 that were reported before the evaluation and it appears that any entitlement to a new evaluator applies to 14 any claims reported after an evaluation has taken place. 15 Here, while we intend to agree with the WCJ’s decision that applicant is entitled to a new panel 16 QME, at this juncture we do not believe that the result turns on the application of Rule 35.5(e). 17 Applicant attended a medical-legal evaluation by Dr. Yogaratnam for his claimed cumulative injury and 18 because applicant was represented that evaluation necessarily would have been pursuant to section 19 4062.2.11 20 applicant’s three claimed injuries involve some of the same body parts and the same parties, the statutes Subsequently, applicant reported two specific injury claims.12 Even where, as here, an 21 22 11 23 Although the case of an unrepresented applicant is not before us, it appears that the difference between an unrepresented and a represented applicant is whether section 4062.1 or 4062.2 applies. Accordingly, we do not believe that whether applicant was represented or unrepresented would change the outcome of this decision. 24 12 25 26 27 30 Here, there is nothing in the record to indicate whether applicant filed claim forms for his subsequent claims of injury with his employer before he filed claim forms at the WCAB on October 4, 2010. However, the original evaluation occurred on September 14, 2009, almost a year before the dates of the two subsequent claimed injuries. Although the issue does not arise in the case before us, we point out that in other cases where multiple claim forms were filed for the same date of injury, the date that the first of those multiple claim forms was filed could be significant in determining which panel QME conducts an evaluation. NAVARRO, Ismael 10 1 make no distinction between claims or injuries to same or different body parts and same or different 2 parties. Applicant’s two claims of specific injury were reported after the original evaluation but before a 3 subsequent evaluation by a new evaluator. Thus, under sections 4062.3(j) and section 4064(a), it appears 4 that applicant is entitled to be evaluated by one new evaluator for his two subsequent claims of injury. 5 Therefore, we intend to conclude that applicant is not required to return to Dr. Yogaratnam for an 6 evaluation of his two subsequent claims of injury and may be evaluated by a new panel QME. 7 Accordingly, we grant removal and issue an NIT to allow DWC and the parties the opportunity to 8 address the issues raised by our proposed holdings as to the Labor Code and Rule 35.5(e) as discussed 9 above. 10 Responses must be filed within twenty (20) days of the service of this order. As applicable, the 11 twenty-day period is extended under Rule 10507 (Cal. Code Regs., tit. 8, § 10507 [service by mail]) and 12 Rule 10508 (Cal. Code Regs., tit. 8, § 10508 [last day to file falls on a weekend or holiday]). Responses 13 must be filed with the Office of the Commissioners of the Appeals Board at the address below and not 14 with any district office or through EAMS. 15 Untimely and/or misfiled responses will not be accepted and will not be considered. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 30 NAVARRO, Ismael 11 1 For the foregoing reasons, 2 IT IS HEREBY ORDERED that defendant’s Petition for Removal is GRANTED. 3 NOTICE IS HEREBY GIVEN that the Appeals Board intends to issue a decision that: 4 (1) 5 The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury. 6 (2) The requirement in Rule 35.5(e) that an employee return to the same 7 evaluator when a new injury or illness is claimed involving the same 8 parties and the same type of body parts is inconsistent with the Labor Code 9 and that this requirement is therefore invalid. 10 NOTICE IS FURTHER GIVEN that DWC, applicant Ismael Navarro, and defendant City of 11 Montebello may each file responses. Responses shall only address the issues raised by our proposed 12 holdings as to the Labor Code and Rule 35.5(e), shall be filed within twenty (20) days of the service of 13 this order, plus five (5) days under Rule 10507 (Cal. Code Regs., tit. 8, § 10507 [service by mail]) and as 14 applicable under Rule 10508 (Cal. Code Regs., tit. 8, § 10508 [last day to file falls on a weekend or 15 holiday]), and shall be filed at the Office of the Commissioners of the Workers' Compensation Appeals 16 Board at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its 17 Post Office Box address (P.O. Box 429459, San Francisco, CA 94142-9459), and shall not be filed at the 18 Long Beach District Office or any other district office of the Workers’ Compensation Appeals Board and 19 shall not be e-filed in EAMS. Untimely and/or misfiled responses will not be accepted and will not be 20 considered. 21 IT IS FURTHER ORDERED that pending the issuance of a Decision After Removal in the 22 above case, all further pleadings, correspondence, objections, motions, requests, and communications 23 shall be filed only with the Office of the Commissioners of the Workers' Compensation Appeals Board at 24 /// 25 /// 26 /// 27 /// 30 NAVARRO, Ismael 12 1 either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its Post Office 2 Box address (P.O. Box 429459, San Francisco, CA 94142-9459), and shall not be submitted to the Long 3 Beach District Office or any other district office of the Workers’ Compensation Appeals Board. 4 WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) 5 6 /s/ Ronnie G. Caplane______________________ RONNIE G. CAPLANE, Chairwoman 7 8 9 /s/ Frank M. Brass_________________________ FRANK M. BRASS, Commissioner 10 11 12 /s/ Alfonso J. Moresi________________________ ALFONSO J. MORESI, Commissioner 13 14 15 /s/ Deidra E. Lowe_________________________ DEIDRA E. LOWE, Commissioner 16 17 18 /s/ Marguerite Sweeney_____________________ MARGUERITE SWEENEY, Commissioner 19 20 21 22 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 2/27/2014 23 24 25 26 27 30 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. ISMAEL NAVARRO ACTING ADMINISTRATIVE DIRECTOR OVERPECK HITZKE & ASSOCIATES, ATTN: JEANNETTE Y. OROZCO LISTER, MARTIN & THOMPSON, LLP, ATTN: JONATHAN D. OGDEN NAVARRO, Ismael 13 1 AS/jp/abs 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 30 NAVARRO, Ismael 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.