Now that pretty much all medical legal exams are either an Agreed Medical Exam (AME) or a Panel Qualified Medical Exam, I have noticed that the old objection dance under Labor Code 4061 and 4062 is not performed as much by parties in litigation. The recent case of J.C. Penny v. WCAB (Edwards) 74 CCC 826 shows the peril of such failure to dance.

A typical occurrence now is that one party will call the other and offer to use an AME. The parties agree on Dr. X, the defendants set the appointment and the case moves toward resolution. But what happens if before or after the evaluation with AME Dr. X a dispute arises regarding retroactive temporary disability status? This issue was addressed in the recent J.C. Penny case.

The AME in J.C. Penny found a retrospective permanent and stationary (P&S) date. However, the trial judge determined that applicant was P&S on the date of the evaluation by the AME rather than the retroactive date. The judge found that it was contrary to the “spirit” of Labor Code §4062 to permit a retrospective determination of permanent and stationary status when there was “substantial evidence” to support on going temporary total disability (TTD). The defendants argued on appeal that the only evidence of P&S status was the medical report from the AME with the earlier P&S date.

Ultimately the issue came down to whether the defendants had objected timely under Labor Code §4062. The statute provides, in pertinent part: “if the employer objects to a medical determination made by the treating physician concerning any medical issues…, the objecting party shall notify the other party in writing of the objection within 20 days of the receipt of the report if the employee is represented by an attorney.” (See Labor Code §4062(a).) The court in J.C. Penny noted that a determination that an applicant continues to be TTD is a medical determination subject to Labor Code §4062. When J.C. Penny failed to timely object under Labor Code §4062 to the determination of temporary total disability status by the treating doctor, it lost the right to object to that determination in the future.

Clearly if the defendant had objected under Labor Code §4062 they would have had a strong argument for receiving credit on the overpayment of TTD. So, in the future, remember to do the old dance, send out the proper objections under Labor Code §§4061 and 4062 and raise issues such as TTD. You should do the dance even if you have an informal agreement to go to an AME. In the end, it may save you time and money – and a lot of litigation costs.