CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
By: Hon. Robert G. Rassp
DISCLAIMER: The opinions expressed by the author in this article are those of the author and are not those of the CA Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board.
Who can request a panel QME first? Do you need an objection letter first? What if a party does not like the medical specialty that is being requested? What if both parties request a QME on the same day? Can you get multiple QME specialists in one case? What if you strike the same QME from the list at the same time as your opponent? Can an Applicant show up to a QME appointment with their lawyer, a court reporter, a smart phone, or a tape recorder? Can a QME examination occur by telehealth without a physical examination? Can chiropractors act as QMEs in surgical cases? When can a party get a replacement panel? When can a party get additional panels in multiple specialties? What does a party do when they object to the opposing side’s advocacy letter? What does a party do when they object to information or communications with a QME or AME? What if an injured worker receives notice of a QME examination scheduled under Labor Code Section 4062.1 (the unrepresented track), and later becomes represented by counsel—is the injured worker required to be examined by the selected QME? Can an Applicant’s attorney obtain two separate QME panels for two separate injuries (a specific injury and a cumulative trauma claim, for example) if the two cases are not filed at the same time? Can an Applicant be compelled to attend a QME examination that only can occur on a Saturday?
Trial judges, WCAB Commissioners, and Deputy Commissioners of the Appeals Board are in the midst of these “Panel Wars” which result in significant litigation and delays of resolving cases in chief. Many expedited hearings are held pursuant to Labor Code Section 5502(b)(3) on disputes over the QME selection process. This article addresses some of the more common issues involving the QME selection process that judges hear every day. Most of the case law discussed here are Appeals Board panel decisions which are not binding authority but can be cited as persuasive authority. See Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp Cases 228, fn. 7 (Appeals Board en banc). Each question above will be discussed separately, even though many cases involve multiple disputes over the QME process. In fact, the number of QME panel disputes are limited only to the imaginations of counsel who practice workers’ compensation law.
This section will not cover the issue of whether or not a QME report constitutes substantial medical evidence and a party requests a replacement panel based on that contention. Replacement of a panel QME due to a faulty report of a QME physician is accomplished only two ways—first by agreement of the parties, and second by a trial judge who finds that the medical evidence does not constitute substantial medical evidence upon which to base a findings and award or order and decision.
If counsel practiced workers’ compensation law prior to April 19, 2004, there were no panel wars. Why? Because each side could obtain their own medical-legal evaluators in whatever medical specialties they wanted. So in many Applicant law practices, it was common for Applicant attorneys to obtain QME examinations and reports from an orthopedic surgeon, internal medicine specialist, and psychiatrist or psychologist. All of this was at the Defendant’s expense. Defendants had to obtain their own QME physicians to rebut or counteract the ones selected by the Applicant. So judges were faced with at least three QMEs from each side, plus treating physician reports. This resulted in enormous frictional costs in claims management. Accordingly, Labor Code Sections 4060, 4061, 4062, 4062.1 and 4062.2 were born out of the response to escalating claims costs in represented cases. The number of QMEs in a case has been reduced and limited since there has to be an agreement between the parties or good cause to allow more than one QME in a case. So the panel wars begin early in a case.
II. When can a party initiate the panel QME process? Can an Applicant’s attorney initiate the PQME process the day the Applicant is signed up as a new client? Can the claims administrator initiate the QME process when it receives notice of an employee’s claim?
Many attorneys who represent injured workers send the employer and its claims administrator a letter at the same time the Application for Adjudication of Claim is filed with the WCAB that says that the Applicant is requesting a panel QME to be obtained on the issue of compensability of the injury pursuant to Labor Code Section 4060; due to a dispute over parts of body injured or entitlement to temporary disability benefits (both pursuant to Section 4062); or due to a dispute over permanent disability (pursuant to Section 4061). Can an Applicant’s attorney send a letter demanding the QME process begin this early in a case? The simple answer is “yes.”
In Bina Brar v. County of Fresno, 86 Cal. Comp. Cases 430, 2021 Cal. Wrk. Comp. P.D. LEXIS 36, an Appeals Board panel addressed this issue involving the QME process in a dispute over the compensability of an injury under Labor Code Section 4060. In Brar, the Applicant’s attorney filed a cumulative trauma injury case alleging injury to multiple parts of body through July 8, 2020. On July 8, 2020, the attorney sent the employer and its claims administrator copies of the initiating documents for the case, a letter of representation, and a demand for treatment. The next day, on July 9, 2020, Applicant’s attorney sent another letter to the employer and claims administrator indicating that a comprehensive medical-legal evaluation is necessary to determine compensability of the alleged injury pursuant to Labor Code Sections 4060 and 4062.2. The letter suggested two orthopedic surgeons as an agreed medical examiner and indicated that QMEs in internal medicine and dentistry “will be requested” in addition to an orthopedic surgeon. The Applicant then requested a QME panel in pain medicine via on-line DWC Form 106 on July 24, 2020, indicating a dispute over compensability of the injury under Section 4060. Applicant utilized her July 9, 2020 letter to defendant as the document that triggered the panel process.
On July 27, 2020, the DWC Medical Unit issued a panel of three QME physicians, Applicant’s counsel struck one doctor. Defendant sent a notice of denial of injury on July 30, 2020. Defendants conditionally struck a second doctor from the panel but also objected to the panel process alleging that there was no dispute until the injury was denied on July 30, 2020 and the Applicant could not request a QME panel until there was a dispute, which occurred for the first time when the claim was denied in its entirety. Defendant filed for an expedited hearing objecting to the QME process indicating it was initiated prematurely before any dispute occurred.
The trial judge held that the Applicant’s initiation of the compensability QME process under Labor Code Sections 4060 and 4062.2 was timely and the Appeals Board panel upheld that decision on Removal by the Defendant. The trial judge indicated that the Applicant’s July 9, 2020 letter to Defendant was sufficient to trigger the 10-day period in which to request a panel from the DWC Medical Unit.
The Appeals Board panel decision quoted Labor Code Section 4060 that applies to disputes over the compensability of any injury. Section 4060(c) states that if a medical evaluation is required to determine compensability at any time after the filing of a claim form, compensability shall be determined only by the procedure provided in Section 4062.2 in a represented case. The Appeals Board then quoted pertinent sections of Labor Code Section 4062.2(b) that states: “No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060, or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062, either party may request the assignment of a three-member panel of QMEs to conduct a comprehensive medical evaluation…” (emphasis added)
Accounting for an additional five days for mailing within California under WCAB Rule 10605(a)(1) [Title 8 Cal. Code Regulations section 10605, the “mail box rule”], the requesting party may request a panel on the 15th day from the mailing date of a request for an evaluation. Here, Applicant’s counsel properly sent Defendant a letter requesting a medical-legal evaluation on July 9, 2020 and waited 10 days plus 5 days for mailing within California before initiating the QME process on July 24, 2020.
The Appeals Board panel held there does not need to be a “dispute” to trigger the QME process for compensability determination since Section 4060 specifically states that a compensability QME process can occur “at any time after the filing of the claim form.” The Appeals Board panel rejected Defendant’s arguments that Applicant has to wait until the injury is denied within the 90-day period of investigation or a 14-day delay letter is sent by the claims examiner before a compensability evaluation can be obtained under Section 4060. See also Mendoza v. Huntington Hospital (2010) 75 Cal. Comp. Cases 634 (Appeals Board en banc), which held that either party can obtain a compensability QME “at any time.” Also see Bahena v. Charles Virzi Construction 2014 Cal. Wrk. Comp. P.D. LEXIS 638 [allowing Applicant to request a panel QME on compensability without a letter indicating an intent to obtain a panel QME after a denial of injury notice was received].
Counsel should always be mindful of the fact that many insurance companies and third-party administrators have out of state addresses and post office boxes. If that is the case then it can be assumed that the mail box rule 10605(a)(2) applies and the claims administrator gets 10 days mailing from outside California rather than the within California 5 days for mailing. These days extend the time for a party to exercise or perform a right or duty to act or respond.
Claims administrators should be more vigilant in arranging for a compensability examination under Labor Code Section 4060 if they want to control discovery from a medical-legal standpoint early in a claim before the employee hires an attorney. In fact, defense counsel and claims administrators should become familiar with Title 8 Cal. Code of Regulations Section 30(d)(1) that says after a claim form has been filed, the claims administrator or employer may request a panel QME under Labor Code Section 4060 to determine whether to accept or reject liability for a claim under Labor Code Section 5502(b) before expiration of the 90-day period allowed by law.
Many employers and defense counsel do not want to obtain a compensability examination if they assert a post-termination defense under Labor Code Section 3600(a)(10) or other affirmative defenses. However, the Applicant has the burden of proving injury by a preponderance of the evidence and a compensability examination under Labor Code Section 4060 is almost always essential. Once the burden of proof that an industrial injury occurred is met where a medical-legal exam under Section 4060 indicates compensability, the burden of proof shifts to the employer to assert its post-termination or other affirmative defense. However, it is not always necessary for the parties to obtain a Labor Code Section 4060 compensability examination if the self-procured treating physician in an injury denied case articulates with substantial medical evidence that the Applicant sustained a compensable industrial injury and how industrial-related injurious exposure caused the injury.
A problem occurs when the claims administrator or employer deny employment and the question arises whether a compensability medical-legal evaluation under Labor Code Section 4060 is required prior to going to trial on the issue of employment. In many cases, since employment is denied, the Applicant is free to obtain self-procured treatment and to develop medical reporting from those doctors that the alleged injury is work related if there is a legal finding of employment. Some judges will require a medical-legal examination on compensability before the issue of employment is heard at trial. Other judges will agree to go to trial on the narrow issue of employment without a medical-legal compensability examination. Judicial economy can be a consideration here where hypothetically a case could end up going to trial twice—once on the issue of employment and then later on the issue of injury AOE/COE under Labor Code Section 3600. This may become more common in cases involving the “gig economy” and an independent contractor defense.
In order to initiate the panel QME process, counsel needs to follow the instructions in Title 8 Cal. Code of Regulations Section 30. Read Section 30 and learn it! As of October 1, 2015 in represented cases, requests for an initial QME panel for dates of injury on or after January 1, 2005 have to be submitted electronically through the DWC web site at http://www.dwc.ca.gov/, utilizing form 106. Rule 30(b)(1)((B) requires the requesting party to upload a written request for an examination to determine compensability for disputes covered by Labor Code Section 4060. For non-compensability issues Rule 30(b)(B)(2) requires uploading a written objection letter to a treating physician, indicate on Form 106 who the treating physician is, the date of the report the objection is directed at, and the nature of the dispute—whether it is under Labor Code Section 4061 (permanent disability and apportionment) or Labor Code Section 4062 (disability status, parts of body injured, need for future medical treatment).
III. Who resolves disputes over the selection of a QME, the specialty of a QME panel, obtaining additional panel QMEs, and replacement of a QME or a panel QME?
Title 8 California Code of Regulations section 31.1 covers QME selection disputes in represented cases. The division of labor between the DWC Medical Unit and WCAB trial judges are indicated. Section 31.1(a) mandates that disputes over the validity of panel requests are to be resolved by a judge. Section 31.1(b) mandates that disputes over the specialty of the QME panel shall be resolved under Rule 31.5(a)(10) of the Rules which requires the objecting party to indicate to the Medical Unit who initiated the QME selection process, what specialty the treating physician has, and to send copies of the Doctor’s First Report of Injury and treating physician reports to the Medical Director for determination of the appropriate specialty. Either party can then appeal that decision to a trial judge by filing a Declaration of Readiness To Proceed. Subsection 31.1(c) empowers a trial judge to determine disputes over specialty or the QME process if the Medical Director is unable to issue a QME panel within 30 days of receiving the request.
What is interesting about Sections 31.1 and 31.5 is that in Rule subsection 31.1(a) empowers the DWC Medical Director to replace a QME or replace the entire QME panel at their discretion if one of the stated grounds for replacement applies. However, case law has issued since the Rule was enacted that a judge can order the DWC Medical Unit to issue replacement of or an additional QME or QME panels without first requesting the DWC Medical Unit to do so. See Porcello v. State of CA Dept. of Corrections and Rehabilitation (2020) 85 Cal. Comp. Cases 327, 2020 Cal. Wrk. Comp. P.D. LEXIS 9 (Noteworthy Panel Decision). Earlier case law indicated that parties had to go through the DWC Medical Unit first before going to a judge to resolve QME panel disputes, but that case was essentially overruled by the Appeals Board in Porcello. See Portner v Costco, 2016 Cal. Wrk. Comp. P.D. LEXIS 499 (Noteworthy Panel decision). The consensus among judges is that upon the filing of a proper Declaration of Readiness To Proceed, a judge can hear disputes over the selection process of a QME, a QME specialty, additional QME panels, and replacement QME or QME panels without first going to the DWC Medical Unit.
In Porcello, the Appeals Board stated: “Nothing in the Labor Code precludes a party from submitting a panel specialty dispute to a WCJ prior to or instead of submitting the dispute to the Medical Director and a WCJ may address this dispute pursuant to the adjudicatory provided by the Labor Code and affirmed in case law.” In a separate case, the Appeals Board panel stated: “If the evidentiary record includes a determination from the Medical Director addressing the appropriate panel specialty … this determination will be considered by the Appeals Board in deciding a specialty dispute. However, since the Appeals Board has the ultimate authority to determine the appropriate specialty, the Medical Director’s determination is not dispositive and may be disregarded if it is not substantial evidence.” See Lopez Contreras v. Randstad North America, 2020 Cal. Wrk. Comp. P.D. LEXIS 121.
In light of the Appeals Board’s panel decisions in Porcello and Lopez Contreras, counsel should simply file for an Expedited Hearing before a trial judge on any panel QME dispute. If the judge needs an opinion from the Medical Director, then that can be obtained and made part of the evidentiary record for the judge to determine the appropriate specialty or other issue that the Medical Director can be of assistance.
IV. What if Applicant and Defendant both cause the DWC Medical Unit to issue a QME panel on the same day?
Usually, the Applicant’s attorney requests a pain management physician or chiropractor QME panel and the Defendant requests an orthopedic surgery QME panel. Rule 30(b)(B)(3) indicates “After issuance of a panel, any subsequent request on the same claim, whether made on the same day or not, is a duplicate request.” So many cases are set for expedited hearing to have a judge determine which side was first to obtain a panel. There are two or three approaches that a judge will use to evaluate which panel applies.
The first is based on who actually was the first party to request a panel—is the actual panel issued by the Medical Unit date and time stamped? Is the initial DWC Form 106 date and time stamped? If the time-stamp method is not feasible, then a judge may consider who has the burden of proof on the disputed medical issue. If the medical dispute is AOE/COE, then the Applicant has the burden of proving injury under Labor Code Section 4060. If the issue is permanent disability and apportionment under Labor Code Section 4061, then perhaps the Defendant has the burden of proving causation of apportionment. If the issue is disability status (entitlement to TTD or MMI status) or a disputed part of body under Labor Code Section 4062, then whoever initiated the dispute based on the date of the objection letter uploaded into the DWC Medical Unit request may control which panel gets selected.
V. Under what circumstances can a party request and obtain an additional QME panel?
The very first step to obtaining an additional panel or panels in different specialties is to obtain a stipulation of both parties to do so. Historically, as indicated above, in pre-2004 cases parties would routinely obtain QMEs in multiple specialties just to see if additional parts of body injured are work related, previously referred to as “orthopedic, psyche, and internal” injuries. In the post-SB899 era, that routine is no longer allowed. Title 8 Cal. Code of Regulations section 31.7 governs the grounds for obtaining additional panels in different specialties.
Section 31.7(a) requires that a QME or AME has already evaluated the injured worker. If there is an additional medical dispute that arises, then the parties should obtain a follow-up evaluation or supplemental evaluation from the same evaluator. Commonly, an original QME in orthopedic surgery would indicate in their QME initial report “The Applicant is depressed.” Is that sufficient evidence to amend a claim to include psyche and ask for a QME in psychiatry or psychology? Probably not. Counsel should send an interrogatory to or take the deposition of the orthopedic surgeon and ask if the Applicant should be evaluated by a psychiatrist or psychologist QME. Stronger grounds for an additional panel specialty would occur if there were actual medical records in a different specialty that were reviewed by the orthopedic QME, but no mention was made in their report about the need for an evaluation by another QME.
Section 31.7(b) indicates that additional panels can be obtained upon a showing of good cause, by agreement of the parties as to the specialty of the additional QME, or by an order by a judge. An additional panel can be obtained in unrepresented cases through the Information and Assistance Officer. Parties should use Form 31.7 to request an additional panel in a different specialty. There is no prerequisite for a party to request an additional panel from the DWC Medical Unit before filing a Declaration of Readiness To Proceed and having a judge order an additional panel. In fact, it is probably quicker and more efficient to file for a hearing on the issue and not go through the Medical Unit since counsel will likely end up litigating the issue anyway.
Can an Applicant’s attorney justify additional QME panels just by just alleging additional body parts or systems in the Application or Claim Form or does there have to be some evidence that justifies additional panels? Some judges will not order additional panels in different specialties when the additional parts of body or body system are “lawyer generated” as opposed to ones that have a legitimate medical basis for the referrals. The best-case scenario for additional panels is when medical reports or records exist on the injured worker in those additional specialties. That occurs either by way of prior medical records that existed before the claim was filed including physician records occurring outside the workers’ compensation system, or self-procured medical reports from treating physicians due to denied parts of body claimed. That being said, it is not unusual for an injured worker to have no health insurance coverage and their attorney raises body parts or systems that have never been treated but can exist as a result of a work injury. This is why there are many physicians in the workers’ compensation system who still agree to treat people on a lien basis while a disputed body party or system is being litigated.
In an admitted injury case, best practices would include having the primary treating physician (PTP) issue a Request for Authorization (RFA) referring the Applicant to consultative physicians in other specialties where those physicians are within the employer/claims administrator’s Medical Provider Network. Once a consultative exam and report issues by a secondary treating physician/consultant, a Labor Code Section 4062 dispute may occur where the additional body part or system is disputed by a party based on the secondary treating physician’s conclusions. This scenario would justify an additional panel.
For example, if an orthopedic surgeon Primary Treating Physician (PTP) believes the Applicant should see an internal medicine specialist due to hypertension, or due to gastro-esophageal reflux disease from long-term use of NSAIDs, the PTP can refer the patient to an MPN internist for a consultative examination. The PTP would have to issue a Request for Authorization (RFA) for that referral and utilization review under Labor Code Section 4610 would apply. If UR denies the referral, then a dispute over parts of body injured occurs under Labor Code Section 4062 and an additional QME in internal medicine would be justified, even if the UR decision is upheld in an Independent Medical Review under Labor Code Sections 4610.5 and 4610.6. If the MPN internist is authorized and the internist opines that the hypertension or GERD is or is not work related, either party can then request an additional QME panel in internal medicine since an “additional medical dispute” has arisen between the parties.
There are a number of ways an additional panel QME can be obtained:
What constitutes good cause for an additional panel?
So, for example, as indicated above, if an orthopedic QME or AME indicates in their report “the patient is depressed,” is that enough to justify an additional panel in psychiatry or psychology? Probably so if the QME says the depression is work related, however, counsel should have the QME orthopedist clarify if they are recommending an additional psyche panel QME to evaluate the case. Counsel can easily find out by sending an interrogatory or taking the deposition of the orthopedic QME. Most judges will not order an additional panel on flimsy evidence of a doctor just saying someone is depressed. That depression may not be caused by a work injury or may not be a clinically significant diagnosis under the DSM as required in Labor Code Section 3208.3. A judge probably will not order additional QME panels in other specialties simply based on an allegation in a claim form or Application. There has to be more evidence to justify additional QME panels.
In an injury denied case based on lack of medical evidence, best practices would be for the parties to obtain a QME in the most dominant medical specialty that occurred in the injury (which is usually an orthopedic injury) and Applicant’s counsel ask the selected QME in an advocacy letter if additional specialists should evaluate the case.
What if in an admitted orthopedic injury case, the selected QME orthopedic surgeon takes the Applicant’s blood pressure which is 165/110 at the time of the QME examination? Would an additional QME in internal medicine be justified based solely on a significantly high blood pressure at the time of the QME exam? This is a tough question to answer in the absence of a prior allegation in the claim or Application that cardiovascular hypertensive disease is being alleged as industrially related. With such an alarming blood pressure reading at a doctor’s office it would seem to be sufficient for the orthopedic QME to advise the Applicant to seek treatment on a private basis, document the blood pressure reading in the QME report, and recommend an evaluation by an internal medicine QME.
VI. What grounds are there to obtain a replacement panel QME?
Disputes over the replacement of a QME or QME panel involves one of the most frequent causes of litigation in workers’ compensation cases in California. Some of the litigation have legitimate reasons while others are completely frivolous and no more than a party’s attempt to dump a perceived bad QME. Title 8 California Code of Regulations Section 31.5 governs the grounds for replacement of a QME or QME panel. If there are 50 ways to leave your lover, there are 16 ways to replace a QME panel:
Most of the litigation over replacement panels involve the following:
Whenever a party wishes to obtain a replacement PQME, the party must indicate with specificity the grounds for the request including the specific section of the Labor Code and Rule 31.5. When counsel files a Petition for a Replacement Panel, counsel must state with specificity which section applies or if there is a reliance on the general principle that judges have jurisdiction over all disputes involving the selection of a QME under title 8 Cal. Code of Regulations section 31.1 which states judges can resolve disputes over the “validity of panel requests.”
VII. So does a QME who only schedules QME examinations on a Saturday constitute grounds for a replacement QME panel? What if a party wants to audio record a QME examination and the QME refuses to allow audio recording or the presence of a court reporter or attorney? Are those grounds for a replacement QME panel?
These are recurrent issues that judges are litigating at the trial level. As to Saturday QME appointments, there are a few QME physicians who reside outside of the State of California but are licensed to practice medicine in California and are also licensed as a QME in good standing. They fly in and fly out for Saturday QME examinations. The main argument propounded by attorneys who object to Saturday QME examination is not necessarily on religious grounds (although that issue has not been raised for an Applicant who observes Sabbath on a Saturday) but rather on the grounds that the Applicant cannot reach his attorney on a Saturday and Saturday is not a business or working day. So far, the case law is firmly in favor of allowing Saturday QME examinations. One published decision is Padilla v. WCAB (2019) 85 Cal. Comp. Cases 146 (writ denied).
In Padilla and subsequent unpublished cases, the Appeals Board denied a Petition for Removal on a trial judge’s refusal to order a replacement panel on the grounds that the appointment for the QME exam was on a Saturday. Title 8 Cal. Code of Regulations section 31.5 lists 16 grounds for replacement of a QME or panel. The fact that a QME only sets appointments on a Saturday is not listed in section 31.5. Rule 31.2 allows the defendant to arrange for the QME appointment if the represented Applicant fails to do so within ten days of selecting the QME. Nothing in that or any other regulations states that appointments cannot be set on a Saturday. In fact, it is possible that an injured worker may wish to have a Saturday QME examination if they are working Monday through Friday—they would not lose time from work. Perhaps observing the Sabbath on a Saturday would constitute good cause for a replacement QME panel but there is no case law on this issue. So each case has to be heard on a case by case basis on its own merits and in some cases Petitions for A Replacement QME may or may not be granted based on good cause. See Rule 31.1(a) which empowers a judge to resolve disputes over the selection of a panel.
Can an injured worker and/or their attorney insist on audio recording a PQME examination? Is the refusal of a QME to allow audio recording or attendance at the examination by an attorney or court reporter sufficient grounds for a judge to order a replacement panel? The simple answer is yes. In Camacho v. Southeast Personnel Leasing, 2020 Cal. Wrk. Comp. P.D. LEXIS 312, an Appeals Board panel [Razo, Lowe, and Zalewski] held that an Applicant can attend a QME examination with a court reporter, audio recorder, or a witness.
The Appeals Board stated: “The Code of Civil Procedure provides for stenographic recording or audio recording of a physical examination of a party, and therefore presumably does not make a meaningful distinction between the two formats for this type of discovery. (See Code of Civil Procedure Section 2032.510(a)), emphasis added [permitting a party ‘to record steno-graphically or by audio technology any words spoken to or by the examinee during any phase of the examination’]. A court reporter can transcribe the entire evaluation and document the start and end times of the QME’s face to face time with Applicant. Additionally, Applicant’s attorney may attend the evaluation with him.” Perhaps it is important to note that in the Camacho case, the QME had previously issued three reports, had his deposition taken, and 10 months had gone by for when a re-examination was scheduled. See also, the detailed decision in Rafael Rodriguez v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408 (Board Panel Decision).
VIII. What kind of disputes over QME medical specialty exist and how are they resolved? Applicant’s attorneys like chiropractors and defendants do not.
One of the biggest sources of litigation over QME panels is over the issue of the QME’s medical specialty. In fact, the race to DWC Form 106 exists because many applicant attorneys want to obtain a chiropractor QME before the claims administrator or its defense attorney can obtain an orthopedic surgeon as the chosen QME medical specialty. Why? There is a perception in the workers’ compensation community among some attorneys that a chiropractor is more liberal, more Applicant oriented, and more willing to suggest other QME medical specialties to evaluate a case including ones in internal medicine, psychiatry or psychology, dental, sleep studies, and others. Defendants object to chiropractor panels because they contend that cases which involve surgery are beyond the scope of a chiropractor’s license to practice chiropractic medicine.
The governing regulations to challenge a proposed medical specialty of a QME panel starts with Title 8 Cal. Code of Regulations Sections 30, 30.5, 31, and 31.5(a)(10). Those sections refer to the fact that the party requesting the QME panel “holds the legal right to designate the specialty.” See also Labor Code Section 4062.2. Section 31.1 refers to the dispute resolution process for issues involving (a) the validity of the QME selection process, and (b) Appropriateness of the medical specialty of the QME panel shall be resolved via Section 31.5(a)(10), which is one of sixteen grounds for a replacement QME panel. Section 31.1(b) also states: “Either party may appeal the Medical Director’s decision of the specialty to a worker’s compensation administrative law judge.” We know from the discussion above in the Porcello case that parties are not required to request action by the Medical Director under Section 31.5(a)(10) and can file a Declaration of Readiness To Proceed and have a judge decide the appropriate specialty without going through the Medical Director first.
The controlling case over the years is Alma Ramirez v. Jaguar Farm Labor Contracting Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 442 (Board Panel Decision). Even though this case is a Noteworthy Panel Decision, it is cited repeatedly since the original decision was issued in 2018, under different facts but ending in the same result. In Ramirez, the Applicant’s attorney won the race to the DWC Form 106 and requested a chiropractor QME panel. Defendant objected and filed a request with the DWC Medical Unit under Rule 31.5(a)(10). The Medical Unit agreed and issued a panel QME in orthopedic surgery. The Applicant appealed the DWC Medical Unit decision to the WCAB trial judge who upheld the DWC Medical Unit. The Appeals Board panel reversed and held that a chiropractor is qualified to evaluate this case.
The points made in Ramirez by the Appeals Board in that and subsequent decisions include:
The Ramirez case was decided in 2018. A more recent case is also a published Noteworthy Panel Decision. See Gloria Marquez v. Supercuts (2021) 86 Cal. Comp. Cases 315; 2021 Cal. Wrk. Comp. P.D. LEXIS 315. The Marquez case is somewhat complex in the factual setting, but each event has to be read in chronological order. The Applicant filed three cases [one specific and two cumulative trauma injuries] against the same employer for lumbar spine, upper extremity, and bilateral knees and the employer denied the injuries. Applicant requested and obtained a chiropractic medicine QME panel with no objection by the Defendant under one specific injury and a cumulative trauma injury. The chiropractic QME opined the Applicant sustained industrial injuries as alleged. Under the third case, Defendant requested a QME panel in orthopedic surgery and contended that the chiropractor QME issued her opinions beyond the scope of her licensure as a chiropractor.
The Appeals Board denied Defendant’s request for a replacement panel in orthopedic surgery or to allow an orthopedic panel in the first place since the chiropractic QME reported on all alleged injuries. Defendant relied on the scope of practice of a chiropractor under Title 16 California Code of Regulations section 302 that defines the scope of practice of a chiropractor can manipulate the spine, joints, muscle and connective tissue of the human body and can utilize X-rays and thermography for diagnostic but not treatment purposes. The Appeals Board indicated that a chiropractor is recognized as a “physician” eligible to become licensed as a QME and perform all duties required of a QME without violating Section 302 that prohibits a chiropractor from providing methods and treatment that constitute the practice of medicine. The Appeals Board decision goes into detail describing the current process of disputing the medical specialty of a QME panel that a party obtains in accordance with the required methodology. See also Roberts v. Securitas Security Services, 2021 Cal. Wrk. Comp. P.D. LEXIS 123 (Board Panel Decision).
IX. What have been the consequences of Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418, 2014 Cal. Wrk. Comp. LEXIS 41 (WCAB en banc decision)?
In Navarro, the Applicant’s attorney filed a cumulative trauma injury case on February 12, 2009, alleging a CT period from February 9, 2008 to February 9, 2009. The Applicant’s attorney obtained a compensability QME panel pursuant to Labor Code Section 4060 who examined the Applicant on September 14, 2009. After the examination occurred by the duly selected QME, on October 4, 2010, the Applicant’s attorney filed two specific injury cases dated June 1, 2010 and August 31, 2010 against the same employer who had the same claims administrator. The Appeals Board held that Title 8 Cal. Code of Regulations section 35.5(e) that requires a QME evaluate all pending claims does not apply under these circumstances. Therefore, an Applicant can be evaluated by a new medical-legal evaluator for each injury reported on a claim form after an original evaluation has taken place. The Appeals Board stated:
The WCAB stated that “Labor Code Sections 4062.3(j) and 4064(a) provide that a medical evaluation shall address “all medical issues arising from all injuries reported on one or more claim forms.” Section 4062.3(k) directs an employee to return to the same evaluator who conducted the previous evaluation when a new medical issue arising relating to the previously reported injury claim(s). As a matter of construction, a prior evaluation of that previously reported injury claim(s) must have already occurred at the time the medical issue arises and consequently, the employee must then return to the same evaluator for the same reported injury claims. In contrast there is not reference in Section 4062.3(k) to subsequent claims of injury.”
So a medical-legal evaluator is required to address all medical issues arising from all reported claims of injury at the time of an evaluation. The Labor Code requires that an Applicant return to the original evaluator when a new medical issue arises in the same claim of injury and when the Applicant reopens the same claim. The Appeals Board held that the Labor Code does not require an employee to return to the same evaluator for a subsequent claim of injury. The Board also held that to the extent Rule 35.5(e) requires an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and, therefore, this requirement is invalid.
The Navarro en banc decision issued in 2014. How have attorneys handled application of Navarro since then? The case has resulted in significant gamesmanship in the quest to find a sympathetic QME or to avoid a bad QME panel. Many attorneys file only one case, obtain a QME in that case and later on, after the QME examination occurs, files a new case just to obtain a second QME panel. The second QME would then be obligated to review “all pending claims” which by law would include the prior one where the first QME already issued a report. Usually a specific injury case is filed first, a QME panel is obtained and the selected QME examines the Applicant and after the QME report is served, the Applicant files a cumulative trauma claim resulting in a second QME panel under Navarro. Or, vice versa—Applicant files a cumulative trauma case first and later files a specific injury case.
Defense counsel must ascertain whether the alleged subsequent injury did in fact occur after the first QME examination, which is what happened in Navarro. One question arises in reference to a subsequent filed CT or specific injury claim is when did the Applicant’s attorney first know about the subsequent claim? Did the subsequent injury really occur subsequent to the original examination date by the first QME? How can this scenario be avoided by defense counsel? Claims administrators should send files out to counsel as soon as possible and before a first QME examination occurs so that all claims of injury at the time of the QME examination are known. This includes a determination of any cumulative trauma claim. In some cases, a Navarro situation cannot be avoided. Navarro was a city police officer who had subsequent legitimate specific injuries while on duty after he was examined by the first QME for his cumulative trauma injury.
X. What if an injured worker receives notice of a QME examination scheduled under Labor Code Section 4062.1, (the unrepresented track) and later becomes represented by counsel—is the injured worker required to be examined by the selected QME?
This issue has arisen many times for many years. In Romero v. Costco Wholesale (2007) 72 Cal. Comp. Cases 824 (Significant Panel Decision), the Defendant obtained a QME orthopedic surgery panel pursuant to the unrepresented track in Labor Code Section 4062.1 due to a dispute with the Applicant regarding need for medical treatment under Labor Code Section 4062. Defendant chose an orthopedic surgeon QME from the panel since the Applicant did not choose a doctor from the panel. The applicant showed up to the appointment, and did not like the looks of the QME’s office. He left the office without submitting to a QME examination and retained legal counsel.
After obtaining legal counsel, Applicant’s attorney requested and obtained a panel QME panel in chiropractic medicine pursuant to Labor Code Section 4062.2, the represented track. Defendant objected and tried to compel the Applicant to attend the QME in orthopedic surgery Defendant had previously selected while the Applicant was not represented. The trial judge and Appeals Board panel held that since the Applicant did not participate in or submit to an examination by the orthopedic surgeon and then became represented by legal counsel, his case shifted tracks from unrepresented under Labor Code Section 4062.1 to Labor Code Section 4062.2. Therefore, he was allowed to attend the chiropractic QME obtained under Labor Code Section 4062.2.
XI. What does a party do when they object to the opposing side’s advocacy letter? What does a party do when they object to information or communications with a QME or AME?
A dispute over what information may be provided to a QME is to be presented to the Workers’ Compensation Appeals Board if the parties cannot informally resolve it, using the procedural steps set forth in Maxham v. Calif. Dept. of Corrections and Rehab. (2017) 82 Cal. Comp. Cases 136, 147-148 (Appeals Board en banc opinion). The Appeals Board in Maxham made a distinction between “information” that is sent by a party to a QME versus “communication” to a QME. “Information,” as used in Labor Code § 4062.3, constitutes: (1) records prepared or maintained by an employee’s treating physician or physicians; and/or (2) medical and nonmedical records relevant to determination of medical issues, and “communication,” as used in Labor Code § 4062.3, may constitute “information” if it contains, references, or encloses: (1) records prepared or maintained by an employee’s treating physician or physicians; and/or (2) medical and nonmedical records relevant to determination of medical issues)]. An advocacy letter is a “communication” as defined in Section 4062.3.
Some judges, for example, will not allow defendants to send to a QME or AME the Notice of Denial of Injury which states that the employer or claims administrator is denying injury AOE/COE for a variety of reasons. It is a hearsay document as much as are investigator reports and witness statements which are always one sided and not exactly reliable in many cases. These items are not “relevant to the determination of medical issues” as stated in Maxham. In a defendant’s advocacy letter, it is perfectly reasonable to state: “The employer denies injury AOE/COE in this case because no injury was reported to the employer prior to the Applicant’s termination from employment and no medical evidence of an injury existed prior to the termination.” Of course the Applicant’s attorney will counter this statement by stating in their advocacy letter: “Applicant contends he reported pain and symptoms to his [name the body part] to his employer who refused to provide a claim form and the employer terminated the employee when he continued to complain of pain.” Or more often: “Applicant did not know his medical condition to his [insert body part] was work related until after his termination when Dr. Smith told him it was.” Witness statements and denial notices may be relevant to legal defenses such as an initial aggressor defense or a post-termination defense, but they are not relevant to the determination of medical issues, such as causation of injury, causation of disability, temporary total disability status, MMI status, permanent disability, and apportionment.
In a few cases, when the issue of witness statements are brought to a judge to determine whether those can be sent to a QME, the judge will most likely prohibit the statements from being sent [because they related to legal defenses only and are not “relevant to the determination of medical issues”]. The judge would suggest that depositions of the witnesses take place so that the deposition transcripts could then be sent to a QME for review if the testimony of the witnesses are relevant to disputed medical issues.
As to Agreed Medical Examiners (AMEs), Labor Code Section 4062.3(c) is unequivocal: the parties shall agree as to what information is being sent to an AME for review and commentary.
Because Labor Code section 4062.3(b) does not provide a specific timeline for an opposing party to object to provision of medical records for a QME’s consideration, that party must object within a reasonable time. The trier of fact has wide discretion to determine an appropriate remedy for violation of the statute [Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803, 1805, 1812-1819 (Appeals Board en banc opinion)].
XII. Can a QME examination occur via telehealth?
This issue is discussed in Chapter 15 of this treatise and the answer is maybe. There is no provision of an actual physical examination of a patient via telehealth nor can a surrogate examiner provide an examination of a patient on behalf of an evaluating physician without the consent of both parties. It is unimaginable for anyone to agree to have an alleged injured worker examined by someone other than the chosen QME or AME. Labor Code Section 4628 and Rule 10682 mandate that the evaluating physician actually perform the physical examination of a patient during a medical-legal evaluation. However, due to the COVID-19 restrictions, the DWC Medical Director issued emergency regulations found at Title 8, Cal. Code of Regulations Sections 36.7 and 46.2. These provide extended time deadlines for setting QME appointments and issuance of reports. More importantly, they allow for an initial telehealth evaluation by telephone or video platform between the QME or AME and the Applicant while stay-at-home orders from the Governor or local authorities are in effect. Much of an initial evaluation consists of an interview with a new patient to determine their signs, symptoms, and complaints concerning their claim for a work injury. The evaluating physician has many preliminary things to do before there is an actual physical examination of the Applicant.
Much of that initial part of a medical legal evaluation can be performed virtually including obtaining the history of present illness, past medical history, past injury history, current complaints, review of submitted medical and non-medical records, and a discussion of the alleged mechanism of injury (specific, cumulative trauma, or both). The QME or AME is able to issue an initial report that outlines all of these categories that belong in an initial comprehensive medical-legal report. In an initial telehealth-based medical report, the QME or AME can provide the parties with a preliminary opinion on whether a claimed injury is industrially related. Once the stay-at-home orders are relaxed and the QME or AME is willing to perform a physical examination then that can occur, completing the initial evaluation.
© Copyright 2021 Robert G. Rassp. All rights reserved. Reprinted with permission.