Death Claim SOL Question (California) (California)

[theAxe]

Scenario:
Caller to QME medical office states that her husband died and she has a death claim filed so she needs a QME report and selected the MD from the panel of three. There is no attorney involved at this time.

States she was told by the CA that she MUST have her QME report in to the CA w/in 90 days of date of death or it will be denied as beyond the SOL.

Add'l info - she states husband was treating with the company doctor for 10 years for this industrial condition prior to death.

Question:
is there a SOL of 90 days from date of death to submit supporting medical documentation - or is the CA just blowing smoke?

Thank you for your comments on this situation.

[steelmanlaw]

i'm not sure where the 90 days limitation comes from, if at all. (review of LC § 139.2(j)(1) doesn't mention a 90 day limtation.) however, there is a statute of limitation of 240 weeks from date of injury within which to file a death claim when the death is forensically related to that injury. (i.e., LC § 5406.) if the decedent had been treating for ten years due to an industrial injury, then that particular date of injury is well beyond the 240 limitation and the death claim is stale. though there may be other approaches which yield a compensable claim, i do not know the ID of the CA and can't help you there.

of course, the devil is in the details.

[jpod]

A claim for death benefits has to be filed with 240 or 270 weeks from the original date of injury which caused teh death. If as you say the deceased employee had been treating for ten years that would mean the SOL ran about 5 years ago.

So the answer is yes and no. Yes, there is a seperate SOL for the filing of death claims. It is either 240 or 270 weeks from the original DOI not 90 days. No, the adjuster is not blowing smoke, but maybe taking smoke as if what you say is true the SOL has already run.

[theAxe]

Thanks for your responces. As we have not yet seen any records nor interviewed the spouse, I look forward to meeting the devil (in the details) and will post any interesting conundrums.

Edited for additional question:
If, in fact the SOL has run, considering that a QME Panel was issued and the MD selected and appt. scheduled, will the QME be paid for his time and report? -The QME has no way of knowing if the SOL has run at the time the appointment is set. If there is no objection to the scheduling of the QME appt. doesn't the IC have the responsibility to pay for medical-legal reports?

[steelmanlaw]

under Del Rio, et al., medical-legal services are compensable or not depending on whether there was a contested issue at the time ther service were rendered. thus, analyze as to whether there was a time concurrence of contested issue and provision of medical-legal services. with that, it is very difficult to argue that there was a contested issue before the Board if the SOL bars the claim from being litigated.

on the other hand, if the defendant had a hand in the QME harvesting and selection process, then one could argue that defendant stipulated to the process and at least the bill should be paid. however, since the burden would be on the doc, a smart IC would split the bill and pay it, on agreement from the QME.

[jakelast@aol.com]

A claim for dependency benefits is barred after 240 weeks from the date of injury (LC 5406) except for asbestos workers or firefighters with asbestosis for which there is no time limit (LC 5406.5).

The probability is both that the claim you are being asked to evaluate is barred and that the information being conveyed by the spouse in inaccurately relayed. There is of course 90 days to accept or reject a claim and the CA very likely told the spouse that. However the 90 days has no impact on the statute of limitations or the jurisdictional authority of the wcab. While the issue is a bit esoteric and many adjusters may not be firmly rooted on the time frames the likelihood is the spouse has not gotten the information provided to her correct as none of it makes any sense in terms of the applicable principles.

[jpod]

Thanks Jake and Steelman for spelling out if it was 240 or 270 weeks. I was in a rush to catch a train and didn't have time to look up the statute.

I agree with the others if defendant had a hand in advising the unrepped applicant to get a panel from the Med Unit and select a doctor then the defendant should pay for the exam unless canceled timely.

[stewshe]

Jake,

Any opinion on Long Beach Unified vs WCAB (McGhee) 69 CCC 1044 holding death due to an overdose of medication prescribed for an industrial injury over 10 years after the original injury was not barred by LC 4656 and the 240 week exclusion, holding the statute of limitations began to run of the day after the date of death?

Of course there's also the Fisher vs WCAB 41 CCC 677 where a spouse died 240 weeks and ONE DAY after the injury and the statute was used to bar the claim.

Both cases are mentioned in my Work Comp Index under "Death Benefits," "Compensable Consequences," "Statute of Limitations," and probably a few other places. I put the same entries in multiple places if there are only a few lines to enter.

I simply HATE it when I'm reading something and am told to see another page and when I go there I find a one or two line entry! This is especially upsetting in indexes! I'm talking about being referred to another page in the index and that page refers me to yet another page in the book...why not tell the reader what page to go to to start with!

It is worse still when reading a paragraph and you are told to go to another page hundreds of pages away, only to find a 1 or 2 line entry! Why not just give the reader the bleeping info in the first place!

stew

[chirple]

Because of the conflicting cases, as mentioned by Stew, the issue of medical causation must also be addressed before a trial on the issues. The Court will not want a trial on solely the 240 week LC 4656 issue. One trial, all issues.

Therefore, the QME will still be needed and hopefully will be paid by the carrier without objection.

[steelmanlaw]

Note also that McGhee is a writ-denied case, with mushy facts applying the "discovery rule" which as a potential exception to the S/L is applied generally in the law to frustrate its application. It's easy to see why the court of appeal exercised it's inherent discretion not to touch it; accordingly, McGhee is not citable authority to support tolling of the S/L. However, if you can find your facts as being materially similar to those in McGhee (i.e., invoking fairness, et al.), then you might have a shot at overcoming the S/L.