California: When QME in One Specialty Defers to Other Specialties

Here’s a noteworthy panel decision in which the Appeals Panel ordered additional panel QMEs. Read our headnote below.

CA - NOTEWORTHY PANEL DECISIONS

Copyright 2023 by Matthew Bender & Company, Inc.

Rochelle Boyd, Applicant v. Visser, National Interstate Richfield, Defendants

W.C.A.B. No. ADJ11629744—WCAB Panel: Commissioners Dodd, Capurro, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 24, 2023

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Reconsideration is granted, the February 13, 2023 Findings of Fact is rescinded, and a new Findings of Fact is substituted.

Medical-Legal Procedure—Additional Qualified Medical Evaluator Panels—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant who suffered admitted industrial injury to her cervical spine and lumbar spine while employed as bus driver on 9/18/2018, established good cause under 8 Cal. Code Reg. § 31.7(b) for issuance of additional qualified medical evaluator panels in internal medicine and psychiatry, when orthopedic panel qualified medical evaluator (PQME) deferred issue of causation of applicant’s non-orthopedic complaints to appropriate specialists who were outside of his area of expertise, and WCAB rejected WCJ’s assertion that medical referral by treating physician was required to establish good cause for obtaining additional panels in other specialties, and found instead that orthopedic PQME’s referral to other specialties constituted good cause for additional panels, noting that without additional panels in relevant specialties, applicant was essentially prevented from conducting medical-legal discovery necessary to determine nature and extent of her admitted injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[7].]