"The Dreaded Rule 30" by Rodger G. Rassp (California) (Calif

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"The Dreaded Rule 30" by Rodger G. Rassp (California) (Calif

Postby stewshe on Thu Oct 01, 2009 4:24 pm

A link follows to "The Dreaded Rule 30" by Rodger G. Rassp. I am sure it will come as news to some. In fact some of his observations I found surprising. "Comp" has been getting stranger and stranger the last few years. Mr. Rassp's blog raises a number of questions. I'd be interested in seeing any other points of view or observations.

http://law.lexisnexis.com/practiceareas/Workers-Compensation-Law-Blog/Workers-Compensation/The-Dreaded-Rule-30

I believe this is a free site, not requiring a Lexis.com subscription. If I'm mistaken, I'm sure someone will let me know. I got into it without having to login.

My own take on this? The only good thing I can see is I'm going to be retiring the end of the year! I'll get to write about all this "horse hockey" which will be a lot more fun than slugging it out in the trenches and fielding phone calls!
James T. Stewart (stewshe@comcast.net)
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Re: "The Dreaded Rule 30" by Rodger G. Rassp (California) (Calif

Postby zacko1 on Sat Oct 03, 2009 9:33 am

This is a complex and obviously important issue. However, for purposes of this issue, isn't one reading of Rule 30(d)(4) that the presumption of 5402(c) is rebutted by the defendants showing that the claim was timely denied? I think the rule can be read that way, and it does not necessarily mean that the defendants have to make a showing that their non-medical defenses may be valid. I can see the Med Unit not wanting to bail out a defendant who fails to timely deny a claim, but if the claim is denied within 90 days, the presumption of 5402(c) does not even come into play, and I think a fair reading of Rule 30(d)(4) is that the Med Unit won't issue a panel on a denied claim unless a judge has found that the decision to deny was timely, at which point the WCJ orders the Med Unit to issue a panel in order to ''determine compensability'', per Rule 30(d)(4).

In my experience, when defendants file an AOE/COE Priority Conference DOR to try to get an early trial on a factual or legal defense that does not require a medical report, most judges will use their discretion, apparently under Rule 10560, to refuse to bifurcate whatever the particular non-medical AOE/COE issue may be, and require the parties to get a medical report before going to trial on the AOE/COE issue. I have heard more than one judge say they don't want to give the defendants two bites at the apple, one with an AOE/COE trial on a legal or factual defense, and then if the defendants lose, a second bite by having the opportunity to then get a medical report upon which they may still be able to contest injury AOE/COE.

While all denials may not be in good faith, it is a common occurrence(especially on represented cases involving CT claims) that defendants are forced to either deny a claim for lack of medical evidence because there is none, accept a claim without medical evidence, or essentially have to risk making the applicant's case for them by starting the PQME process. It seems it would be a better practice for the Med Unit to be instructed to issue panels on denied claims without these restrictions.

Of course, the existing remedy for defendants is to request the panel before a denial issues, but that still puts the burden on the defendants to begin the process of making the applicant's case for them. Further, even if the PQME process were initiated on the first day a claim form was recieved, it seems a virtual impossibility on a represented case(given the time allowances for setting a PQME exam and for producing a PQME report) for the defendants to be able to make a timely informed decision, and the defendants would still find themselves having to deny a claim for lack of medical evidence pending receipt of the PQME report, in order to avoid the claim being presumed compensable under 5402(c).
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Re: "The Dreaded Rule 30" by Rodger G. Rassp (California) (Calif

Postby vampireinthenight on Tue Oct 06, 2009 8:23 am

I don't really see it as a "default judgment" scenario. I agree with zacko1. If a defendant timely denies and then later medicals appear, I think the defendant will be able to secure a QME under Rule 30. That said, I think Rule 30 is a stupid burdensome waste of a Rule. We are seeing far too many of these Rules lately.
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