California: Is There a Revival of “Dueling Docs” in the Workers’ Comp System?

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board

“Three’s a Crowd” in QME Panel Selection

In the case of Hobbs v. N. Valley Elecs. Distrib., 2020 Cal. Wrk. Comp. P.D. LEXIS 239 (Board panel decision), the WCAB explained the obvious.

“There are three physicians on a QME panel. (Lab. Code, § 4062.2(b).) Based on the statute's language and basic mathematics, there can be only two parties to the QME process. This is the proverbial ‘three's a crowd’ scenario since three strikes from a panel would result in no remaining physician to evaluate the employee.”

True. However, what if there are three parties, the applicant, the employer and a legitimate third party-in-interest? Who gets kicked out of the triangle? The WCAB solved this problem in Hobbs, supra, by analogizing the “third party in interest” to that of a lien claimant. Lien claimants are entitled to due process and all relevant discovery rights. But there is no law on the books that would entitle them to participate in the QME selection process. So, after removing the lien claimant “look alike” from the group, two parties were left to battle it out, consistent with the legislative intent.

Is Election Against a Single Defendant Out of Many a Viable Trial Strategy?

This “three’s a crowd” issue also arose in the case of Chanchavac v. LB Indus., 2015 Cal. Wrk. Comp. P.D. LEXIS 516 (Board panel decision). In that case, three parties attempted to get involved in the QME selection process:

1. Applicant, who insisted on litigating her cumulative trauma (CT) claim against both liable insurance companies, refusing to elect just one per Lab. Code § 5500.5;

2. Insurance Co #1 - Twin City Fire Ins Co (“Twin City”); and

3. Insurance Co #2 - Sentry Select (“Sentry”).

Applicant’s employer was represented by both insurance companies for different coverage periods during applicant’s CT claim. Initially, Twin City and applicant obtained a QME Panel in the specialty of the primary treating physician (PTP)—chiropractic. At no time, during this QME selection process did they allow Insurance Co #2—“Sentry”—to participate.

Since “Sentry” was still fully involved in the ongoing litigation, AND since “Sentry” had no input as to the initial QME selection process, “Sentry” initiated their own QME selection process. They requested a QME panel in the specialty of orthopedic surgery, which was found appropriate by the Medical Unit and the WCJ, even though the PTP in the case was a chiropractor.

The legislative intent of Labor Code §§ 5500.5 and 4062.2 was to avoid the delays involved with the “dueling doctor” competition. Therefore, applicant was confident her objection to “Sentry’s” request for an additional QME panel would be sustained. It wasn’t. The WCJ acknowledged that the intent of Labor Code §§ 5500.5 and 4062.2 was to streamline the litigation process by selecting a single medical evaluator to coordinate the determination of the relevant issues in any given case. However, the WCJ further explained:

“…[Lab. Code, § 5500.5] is specifically designed ‘for the purpose of ameliorating the procedural morass which has faced the board in multiple defendant cases’, and to ‘avoid the confusion and delay inevitable where multiple defendants are involved.’ Although this option was presented to applicant on the morning of trial, she steadfastly refused to avail herself of it. She has instead insisted that Sentry remain an active party defendant in this case, while simultaneously attempting to prevent it from acting. The undersigned believes she cannot have it both ways. If she does not wish to designate one carrier with whom she wishes to litigate, she must litigate with all of them, all of whom must in turn be permitted to defend their own interests as they see fit.’”

The WCJ avoided the “three’s a crowd” problem by allowing “Sentry” to obtain its own QME panel in the specialty of orthopedic surgery. On appeal, the WCAB affirmed the WCJ’s conclusion and rationale.

Defendant #2’s Turn to Object

Recently, a similar “dueling docs” fact pattern showed up in the case of Justo v. CitiStaff Solutions, 2024 Cal. Wrk. Comp. P.D. LEXIS 368 (Board panel decision), with a slight twist. In this case, it was the applicant who applied for the second QME, prompting a strong objection from CitiStaff Solutions (Defendant #2).

In the Justo case, applicant sustained a cumulative trauma (“CT”) during the period of 2/15/2019–2/15/2020 to her lumbar spine, bilateral lower extremities, jaw and psyche. During that one-year CT period she worked for Consolidated Staff Solutions (Defendant #1) part of the year and for CitiStaff Solutions (Defendant #2) the remainder. As in the Chanchavac case, applicant declined to elect against either employer, and proceeded to litigate her case against both.

Consolidated Staff Solutions (Defendant #1) and applicant engaged in the QME process, which resulted in the selection of an orthopedic surgeon, Dr. Dixon, on 11/12/21.

On 9/22/2022, CitiStaff Solutions (Defendant #2) joined the case and denied liability a month later on 10/11/2022. After over a year had passed, on 1/8/2024, applicant requested a QME panel in Chiropractic per Labor Code § 4062.2(b), using the CitiStaff Solutions’ (Defendant #2) denial letter of 10/11/22 as a trigger for the event. The Medical Unit then issued Panel 7653853 (Chiro DCH) for the parties to utilize in the dispute between applicant and CitiStaff Solutions (Defendant #2). CitiStaff Solutions (Defendant #2) objected. They claimed applicant was not entitled to obtain a second QME panel in chiropractic since an orthopedic QME already existed in the same CT claim against Consolidated Staff Solutions (Defendant #1).

The issue was brought to trial and, on 9/20/24, the WCJ issued his Findings & Order holding Panel 7653853 in chiropractic to be invalid as it was a second QME panel in the case. In response to applicant’s Petition for Reconsideration of this order, the WCJ put forth a rather forceful argument in defense of his Order, in his Report & Recommendation to the WCAB commissioners as follows:

“Petitioner’s suggested expansion of Applicant’s panel rights would be bad policy, complicating litigation unnecessarily, increasing costs and delays, and creating uncertainty about the rights of additional joined and [and the rights of the] parties who were not joined as a defendant.

Petitioner cannot claim a violation of due process rights, since Petitioner had every right to participate in the first QME selection and then make an election. Petitioner asks about fairness, but fails to see the unfairness to additional defendants where there is an election against one defendant. If it is fair to cut off all discovery rights against defendants who have no choice to elect, it would obviously be just as fair to cut off additional discovery rights against an applicant who does have the choice of election.

Petitioner had the opportunity to obtain a chiropractic panel in the first QME selection, but an orthopedic surgeon was selected instead. There is no evidence presented to justify another panel in chiropractic.” (Emphasis added.)

Despite the WCJ’s vehement rationale for invalidating the second QME panel, the WCAB vacated the WCJ’s order and allowed applicant to go forward with the second QME selection process. It seemed that the choice not to elect per Labor Code § 5500.5 was a cognizant trial strategy on behalf of applicant, which she was entitled to choose. The WCAB explained that the election process under Labor Code § 5500.5 was intended for applicant’s benefit. When there is more than one defendant, applicant is entitled to elect against and proceed against a single defendant, thus truncating much of the discovery process. Litigation will then proceed to a more expedited determination of benefits. After applicant has obtained their result, the remaining defendants can take as long as they wish to battle it out amongst themselves as to the amount each must contribute to the recovery already distributed to applicant. If applicant does not wish to avail themselves of this benefit and is willing to simultaneously litigate against all defendants at once, that is their right to do so. The WCAB deemed applicant was entitled to continue the litigation process against her two prior employers with both an orthopedic QME and a chiropractic QME.

Takeaway

Despite the valiant attempt of the legislature to do away with the “dueling docs” practice of yesteryear, it seems like it has made its way back into the system, but only as to very unique and limited circumstances.

Reminder: Board panel decisions are not binding precedent.

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