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California: Streamlining the QME Process for Represented Employees

February 06, 2015 (4 min read)

In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 638 (Lexis Advance), the WCAB affirmed the WCJ’s finding that a request by a legally represented applicant for a QME panel in the chiropractic specialty that was made more than 10 days after the defendant sent a letter denying the applicant’s claim for a 3/30/2013 industrial injury to his arm, wrist, chest, shoulders, and knee, satisfied the requirements of Labor Code §§ 4060 and 4062.2(b) (lexis.com) LC 4060, 4062.2 (Lexis Advance), notwithstanding that the applicant did not first send the letter requesting the medical evaluation.

The WCAB found that the procedure for requesting a QME panel under Labor Code §§ 4060 and 4062.2 for represented employees is ambiguous in that it is unclear from the statutes what triggers the 10-day waiting period that must expire before a party may request a QME panel. Although the prevailing view among workers’ compensation practitioners, as supported by the DWC website, would require that a party seeking a QME first send a letter requesting a medical evaluation to the other party and then wait 10 days before requesting a QME panel, despite the SB 863 amendment of Labor Code § 4062.2(b) in 2012 eliminating the requirement that the parties attempt to agree on an agreed medical examiner, the WCAB found that the prevailing position is flawed.

The WCAB explained that Labor Code § 4062.2(b) specifically refers to a request for medical evaluation pursuant to Labor Code § 4060 and there is nothing in Labor Code § 4060 about a party notifying the other party of its intention to request a QME panel before making the request.

Furthermore, there is no indication that when the requirement in Labor Code § 4062.2 about proposing an agreed medical examiner was removed, the Legislature intended to retain the provision that a party seeking evaluation must notify the other party of its intention to request a QME panel.

According to the WCAB, the legislative history of SB 863 supports the conclusion that the changes to the process of obtaining a comprehensive medical evaluation for represented employees in denied injury cases were intended to make the process more similar to the process utilized for unrepresented employees, where a QME panel may be requested by the employee immediately upon receipt of a denial letter and by the employer 10 days later if the employee does not request a panel.

The WCAB also found that eliminating the requirement that a party requesting a QME panel propose an agreed medical examiner first, but retaining the requirement that a letter must still be sent and then an additional 10-day waiting period must pass before a panel can be requested, does nothing to streamline the current process and eliminate unnecessary delays. However, allowing the parties to request a QME panel 10 days after a denial letter issues would achieve that goal.

Finally, the WCAB found that the legislative intent of SB 863 is best achieved by resolving the ambiguity in the Labor Code §§ 4060 and 4062.2(b) process for requesting a QME panel in denied injury cases with represented employees by allowing the QME panel requests to be made 10 days after a denial letter is issued.

COMMENTARY:

In Bahena, the WCJ correctly identified an ambiguity that exists in represented cases between Labor Code §§ 4060 and 4062.2. Though Labor Code § 4060(c) does state that a QME shall be obtained pursuant to the procedures set forth in § 4062.2, to the extent 4062.2 refers to ”a request for a medical evaluation pursuant to Section 4060” there is no such provision in § 4060.

This provision was, in fact, removed as part of SB 863 in 2012. The WCJ concluded that had the Legislature intended to include such a requirement in § 4060, it could have done so. The WCJ found that the Legislative history behind SB 863 as well as SB 863’s elimination of the requirement to propose an AME prior to proceeding to a PQME suggested, in fact, there was no longer any requirement to send a letter to the defendant before the PQME request is submitted to the Medical Unit.

As the WCJ pointed out in Bahena, SB 863’s elimination of the requirement to propose an AME as well the elimination of a requirement to send a letter requesting a QME before requesting a panel from the Medical Unit both serve a common purpose. Specifically, they serve to streamline the QME process. Any interpretation of these statutes that serves to streamline what has become an extremely litigious and slow process should be applauded. This will unquestionably help the parties obtain their evaluations sooner and resolve their cases more quickly.

Read the Bahena noteworthy panel decision.

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