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California: W.C.A.B. Rules ADR 35.5(e) Invalid

February 28, 2014 (3 min read)

The W.C.A.B. has issued an en banc decision on an issue that comes up fairly frequently before the W.C.A.B.—the application of Rule 35.5 to QME where an injured worker has multiple injuries to similar parts of the body with the same parties. Rule 35.5(e) would suggest the employee is limited to obtaining a QME evaluation for the subsequent injuries with the same QME.

In Navarro v City of Montebello, the W.C.A.B. has ruled that an injured worker is not so limited and to the extent Rule 35.5(e) suggests differently, the W.C.A.B. has determined the rule is contrary to the statutory scheme for obtaining medical legal examinations. The W.C.A.B.’s holding is succinctly stated at the beginning of the decision:

Based upon our review of the relevant statutes and case law, we intend to hold that:

(1) The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury.

(2) The requirement in Rule 35.5(e) that 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 that this requirement is therefore invalid

In this case the ruling is not final as the W.C.A.B. has indicated it is issuing a Notice of Intent to so rule but has given the parties 20 days to respond to the question of whether Rule 35.5(e) is inconsistent with the Labor Code and, therefore, invalid.

The W.C.A.B. reviewed the entire statutory scheme for obtaining medical legal exams noting the statutory language appeared to refer to single claims, not multiple injuries, with the exception of Labor Code §§ 4062.3(j) and 4064(a), which require a medical legal evaluator to address all contested issues arising from one or more injuries reported on a claim form.

The W.C.A.B. distinguished the requirement to see the same QME/AME with a new issue for the same injury for which an employee has been already been seen. For new injuries, the statutory scheme, in effect, turns over again and resets. In the instant case, the employee filed new specific injuries after a previous claim had already been resolved and sought a new QME panel which the trial judges (and now the W.C.A.B.) have allowed.

The disposition is 20 days for submission of arguments on the above issue, after which we can expect a further en banc decision with the W.C.A.B. either endorsing its decision or modifying it in some respect.


We will really have to wait for the updated decision from the W.C.A.B. before there is any binding precedent for this decision. However, this is an issue which ultimately cuts both in favor of applicants or defendants, just not necessarily in the same case. Usually one side or the other will want to keep the same QME with the other attempting to get an opportunity to change the medical legal evaluator. Both sides would seem to be able to take advantage of this decision.

In cases with different employer or carriers and subsequent injuries, the W.C.A.B. has typically allowed new QME evaluations, in part because of the requirement to avoid ex parte communication. A new defendant will come into such a case where the parties had already had communication—sometimes extensive communication with a QME or AME. This case deals specifically with claims where the parties are identical. The W.C.A.B. has, in effect, applied the same rules to claims with identical parties.

© Copyright 2014 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.


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