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California: Quirky Regs and Rules Related to the Medical Legal Evaluation Process

February 06, 2015 (9 min read)

Trial calendars have been inundated lately with expedited hearings dealing with Qualified Medical Evaluator (QME) and Agreed Medical Evaluator (AME) issues. As a result of the Post-SB 863 onslaught of new regs, rules and procedures, the legal community is having a difficult time keeping up with many of the quirky twists and turns in the medical legal evaluation process. Three frequent issues that are brought before the court are:

1. Is it mandatory for the parties to select a QME panel in the same specialty as the primary treating physician (PTP)?

2. May either party unilaterally withdraw from an AME agreement?

3. May a medical-legal report be signed electronically by the evaluating physician?

These questions and more were addressed in the Noteworthy Panel Decisions summarized below. In each case, the court cited the applicable legal authority, which parties should be prepared to present to the Judge prior to the start of each hearing.

[Publisher’s Note: Citations link to lexis.com. Bracketed citations link to Lexis Advance.]

I. Specialty of the QME Panel

The noteworthy panel decision of Richmond v. Santa Rosa Tile Co., 2014 Cal. Wrk. Comp. P.D. LEXIS 658 [2014 Cal. Wrk. Comp. P.D. LEXIS 658], discusses the appropriate selection of specialty for the QME panel.

The injured worker in this case, Ms. Richmond, was a cashier for the Santa Rosa Tile Company. She was diagnosed with the industrial injury of bilateral carpal tunnel syndrome by her PTP, Dr. Kai-Uwe Mazur, who happened to be an orthopedist.

Even though the specialty of the PTP was orthopedics, the applicant attorney submitted a request for a QME panel in the field of physical medicine and rehabilitation. When a replacement panel was required, the Judge ordered that a QME panel in the field of physical medicine and rehabilitation be issued, in accordance with applicant’s initial request.

Defendant filed a petition for removal from this order. Defense claimed that a panel in the specialty of orthopedics would be the more appropriate specialty, since that was the specialty of the PTP.

The WCAB affirmed the Judge’s order, noting under Labor Code Section 4062.2 [LC 4062.2] and the applicable regulations, there is no mandate that the QME panel be in the same specialty as the PTP. Two commissioners in the majority opinion agreed and explained that Labor Code Section 4062.2 simply requires that the party making the request for a QME panel state the following:

> Their preference as to the specialty of the QME panel;

> The specialty of the treating physician; and

> The specialty requested by the opposing party, if known.

Since the applicant followed the procedure set forth in Labor Code Section 4062.2, the QME panel (which had already been issued by the Medical Unit) was affirmed.

This holding is consistent with a recent line of noteworthy panel decisions, leading one to believe that the WCAB has a strong preference (whenever possible) for affirming any and all QME panels that have already been issued by the Medical Unit. That is, unless the specialty of the panel is so far afield from the injured body part, so as to make the evaluation completely useless. For instance, a QME panel in the specialty of urology would not be workable if the injury was a blunt trauma injury to the applicant’s right eye. However, as in this case, a QME panel in the specialty of physical medicine and rehabilitation for an evaluation of the applicant’s carpal tunnel syndrome would seem to be within the realm of feasibility for a medical legal evaluation that might constitute substantial evidence on the relevant disputed issues.

It should be noted that Commissioner Zalewski disagreed with the majority in this case and wrote a dissenting opinion. She advised that she would not have affirmed the issuance of the QME panel in the specialty of physical medicine and rehabilitation. She explained that 8 Cal. Code Reg. § 31.1(b) [R 31.1] provides as follows:

“In the event a party in a represented case wishes to request a QME panel pursuant to Labor Code section 4062.2 in a specialty other than the specialty of the treating physician, the party shall submit with the panel request form any relevant documentation supporting the reason for requesting a different panel.” (Emphasis added.)

Since the applicant attorney did not submit documentation to support a reason for requesting a different specialty from the primary treating physician, Commissioner Zalewski explained that she would have stricken the current QME panel and returned the matter to the trial level to allow “an evidentiary hearing on the issue of the appropriate QME specialty.”

An evidentiary hearing on this issue was exactly what happened in the noteworthy panel decision of Lagunas v. Mi Pueblo, 2014 Cal. Wrk. Comp. P.D. LEXIS 655 [2014 Cal. Wrk. Comp. P.D. LEXIS 655].

The facts in Lagunas are quite similar to the facts in Richmond, supra. On February 3, 2013, Gabriel Lagunas suffered an industrial injury to his back and other body parts. Mr. Lagunas’ PTP specialized in physical medicine and rehabilitation. However, defendant requested a QME panel in the field of orthopedics, which was subsequently issued by the Medical Unit.

The Judge took note of 8 Cal. Code Reg. § 31.1(b) [R 31.1] and explained that since the PTP, Dr. Phan, specialized in physical medicine and rehabilitation, defendant should have provided relevant documentation to support a request for a QME in a specialty different from the PTP. Since defendant did not do this, defendant’s panel request was found to be invalid.

However, unlike the Richmond case cited above, wherein no evidentiary hearing was held on the issue of the appropriate QME specialty, the Judge in the Lagunas case conducted such a hearing. The Judge then considered the following:

> No evidence was submitted that applicant requested a QME panel in any specific specialty;

> No evidence was submitted that the applicant had expressed a preference for a QME panel in a specialty other than orthopedics;

> The applicant did not object to defendant’s request for an orthopedic QME panel prior to the filing of the DOR; and

> The injury in question is an admitted low back injury and claimed shoulder injury, both of which are musculoskeletal injuries.

Based on the above findings, the Judge made a determination that orthopedics was the appropriate specialty for the QME panel. The WCAB affirmed the Judge and adopted and incorporated the Judge’s report and recommendation. Again, this holding was in keeping with what appears to be a preference by the WCAB, whenever possible, to go forward with the QME panel that has already been issued by the Medical Unit, rather than order a replacement QME panel issue and delay the case even further.

PRACTICE TIP: Parties should not interpret the holdings in these two decisions as the WCAB condoning a willful disregard of the WCAB rules and regulations. Before appearing at a hearing on any issue, parties should identify the applicable rule of law and be prepared to explain to the Judge what evidence in the record supports compliance with that code section, regulation or case. Failure to do so could result in delay of the litigation process, a contrary holding or even imposition of sanctions.

II. Unilateral Withdrawal from AME Agreement

Another issue that has become a gotcha for many parties requesting a QME panel is a recently added section (f) to Labor Code Section 4062.2 [LC 4062.2]. This section prohibits a party from unilaterally rescinding an AME agreement.

Labor Code Section 4062.2(f) provides in part, “… a [QME] panel shall not be requested… on any issue that has been agreed to be submitted to or has been submitted to an agreed medical evaluator unless the agreement has been canceled by mutual written consent.” (Emphasis added.)

This mandate blindsided the applicant in the case of Castorena v. Mark One Corporation, 2014 Cal. Wrk. Comp. P.D. LEXIS 643 [2014 Cal. Wrk. Comp. P.D. LEXIS 643].

In Castorena, the applicant attorney offered to use Dr. Mandell as the AME. The defendant agreed to use Dr. Mandell. However, applicant subsequently attempted to withdraw unilaterally from the AME agreement. The matter was set for trial, even though applicant attorney was advised by defendant that unilateral withdrawal of the AME agreement was no longer permitted by Labor Code Section 4062.2(f).

At trial, applicant relied on the following cases to support their position:

> Pedroza v. WCAB (Bear Valley Paving) (2004) 69 Cal Comp Cases 287 [69 CCC 287]

> Laing v. WCAB (Kaiser Engineers) (2007) 72 Cal Comp Cases 767 [72 CCC 767]

The Judge reviewed the holding in these cases and pointed out that both of these cases predate the amendment to Labor Code Section 4062.2 prohibiting unilateral withdrawal from an AME agreement. Therefore, the determination that Dr. Mandell was the properly named AME in this matter was affirmed both by the Judge and by the WCAB on appeal.

III. Electronic Signature of Evaluating Physician

Another frequent issue that arises at trial is admissibility of a QME panel report if it is signed with an electronic signature, rather than a “wet” signature.

This issue was briefly addressed in the noteworthy panel decision of Torres v. Auto Zone, 2013 Cal. Wrk. Comp. P.D. LEXIS 230 [2013 Cal. Wrk. Comp. P.D. LEXIS 230] as follows:

“Dr. Moelleken, in his report of January 14, 2013 (Exhibit #4) indicates his personal use of an electronic signature, there is no signature stamp or auto pen used. This procedure is used by the undersigned and is not deemed as contrary to Workers' Compensation Laws. [See U.S. Fire Ins. Co. v. WCAB (Love) (2007) 72 Cal. Comp. Cases 865 [72 CCC 865]]

An electronic signature does not render treating doctor reports inadmissible.”

Although Torres, a panel decision, is not definitive law, it would seem contrary to public policy and common sense to allow Workers’ Compensation Judges to use an electronic signature for all relevant legal documents, but not allow physicians the same privilege.

Conclusion:

There are still quite a few post-SB 863 issues to be resolved when dealing with the medical legal evaluation process. For many of these issues, guidance can be found in the Labor Code, the plethora of new regulations and decisions of the WCAB. It behooves all parties to keep up to date on the most current versions of all of these legal authorities and be prepared to offer them first to opposing counsel to resolve the issue quickly. If agreement is still not possible, then the parties should provide those legal authorities to the Judge so that the Judge may provide all relevant information to the WCAB commissioners should the holding be appealed. This practice will ensure a more expeditious process for selection of evaluating physicians and will avoid unnecessary delay in processing workers’ claims for benefits.

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