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Find Solutions & Strategies September 30, 2013 |
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Carve Out Agreements
WCJ to determine if a carve out provided for adjudication of alleged ex parte communication |
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carve outs & ex parte communication |
This noteworthy panel decision will soon be added to the LexisNexis services. This panel decision alert is brought to you by Rassp & Herlick, California Workers' Compensation Law, Seventh Edition.
In the Hordwedel panel decision, the Board panel granted removal returning the matter to the trial judge to conduct a hearing to determine whether a carve-out agreement, recognized per Labor Code section 3201.7, provides for the adjudication of disputes regarding the allegation of ex parte communication with an IME. Read more. |
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carve out, cont. |
The dispute involves a carve out agreement per section 3201.7, that consists only of a list of exclusive qualified medical examiners, per section 3201.7(a)(3)(C). The agreement does not include any actual dispute resolution process as allowed by section 3201.7(a)(3)(A). The dispute in this matter involves whether the defendant violated a provision of the agreement by engaging in ex parte communication with the IME selected from the exclusive list. As there is no mediation/arbitration provisions in this agreement, as is typical in most carve out programs in California, applicant sought an order striking the IME from a WCJ. Defendant objected on the grounds that the dispute should go to the Labor Management Committee (LMC) that negotiated and oversees the carve out agreement. The WCJ denied applicant's request summarily on the sole grounds that he had followed improper procedure under the agreement, stating that the issue should go before the LMC who's decision could be challenged on a Petition for Reconsideration with the Appeals Board. On a petition for removal, the Board panel returned the matter to the trial level for a hearing on the scope of the carve out agreement and the role of the LMC.
Editor's Note: Our headnote for this noteworthy panel decision reads as follows:
Alternative Dispute Resolution; Interpretation of Labor Management Agreement. WCAB, granting removal and rescinding WCJ's order, returned matter to WCJ for a determination regarding whether labor management carve-out agreement between applicant/fire captain and his employer recognized under Labor Code � 3201.7, which contained provisions providing for selection of Independent Medical Examiner from approved list pursuant to Labor Code � 3201.7(a)(3)(C), also provided for adjudication of disputes involving allegations of ex parte communications with Independent Medical Examiner, when parties disputed scope of carve-out agreement and role of Labor Management Committee (LMC) in resolving issue presented, and WCAB found that (1) while provisions of agreement empowered LMC to address issues of "interpretation in the implementation" of agreement, document did not clearly describe any dispute resolution process for addressing individual disputes such as applicant's, (2) in order to assure issue raised by applicant's petition is properly addressed, WCJ should conduct a hearing to allow parties to present arguments and evidence regarding proper construction of scope of agreement and role of LMC to determine if applicant's petition should be heard by LMC or by WCAB, and (3) if it is determined that agreement does not provide for LMC to adjudicate issue, WCJ should hear matter and decide whether Independent Medical Examiner's report is inadmissible. See Hordwedel panel decision.
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