California: WCAB Panel Allows Report of Non-Examining Panel QME in Contribution Proceeding

California: WCAB Panel Allows Report of Non-Examining Panel QME in Contribution Proceeding

In Chirinos v. Heartwood Cabinet, No. ADJ2087163, the WCAB panel found that the applicant’s failure to submit to a physical examination by the panel QME did not render the panel QME’s reports inadmissible for purposes of this contribution proceeding, and that the Arbitrator did not err in relying upon the opinion of the panel QME to determine apportionment between two carriers.

The applicant claimed a specific injury for which Virginia Surety provided benefits. Subsequently, he claimed a cumulative trauma for a period during which both Virginia Surety and Majestic Insurance provided coverage. Applicant elected to proceed against Virginia Surety on the cumulative trauma claim. The parties settled the cumulative trauma claim by Compromise and Release Agreement, and agreed to dismiss the specific injury claim with prejudice.

Virginia Surety filed a petition for contribution against Majestic pursuant to Labor Code § 5500.5, for reimbursement of benefits paid. Majestic selected a panel QME, but applicant failed to appear for the scheduled examination. Majestic obtained an order to compel applicant’s attendance, but applicant again failed to show up for his examination.

The panel QME, despite being unable to perform a physical examination of applicant, prepared reports using applicant’s medical records and deposition testimony. The panel QME concluded that applicant had both a specific injury and then an aggravation of that injury after returning to modified work, leading to an additional cumulative trauma injury through his last day of work. The panel QME noted applicant reported his pain levels as 7 out of 10 following the specific injury, with an increase to 9 out of 10 over the next 14 months. Based on the above, the panel QME opined that 70% of applicant’s condition arose from the specific injury and 30% was due to the period of cumulative injury.

The WCAB panel pointed out that Majestic, as the non-elected against defendant, lacked the ability to engage in discovery during the case-in-chief to determine the extent of its potential liability and that it had to await the commencement of contribution proceedings under Labor Code § 5500.5(e). 

Here, the WCAB panel found that although ordinarily only reports of attending or examining physicians are admissible in evidence in workers’ compensation proceedings [citing Labor Code § 5703(a)], Majestic had followed the requirements of Labor Code §§ 4062 and 4062.2 in obtaining the panel QME reports, and admission of those panel QME’s reports into evidence in this contribution proceeding was consistent with the statutory scheme created by Labor Code §§ 4062, 4062.2 and 5500.5(e).

The WCAB panel explained that

“…[T]he statutory scheme created by section 5500.5(e) makes it necessary for non-elected against defendants to seek medical reports long after the applicant has received his benefits and has no interest in the outcome of the supplemental proceedings. Just as in [Willette v. Au Electric Corporation (2004) 69 Cal.Comp.Cases 1298 (Appeals Board en banc)], where the Appeals Board held that because utilization review reports are an essential part of the WCAB’s record in proceedings regarding medical treatment disputes, such reports may be admitted under a limited exception to the requirements of Section 5703(a). That is, even though utilization review physicians are not ‘attending or examining’ physicians within the meaning of section 5703(a), utilization review reports generated under Section 4610 are admissible in WCAB proceedings, if their admission would be consistent with the statutory scheme. (Willette, supra, 69 Cal.Comp.Cases at 1306-1307 & fn. 9 (Appeals Board en banc).)” [Emphases by WCAB]

Under the circumstances of this case, the WCAB panel concluded that a medical report based upon a review of the applicant’s medical records could constitute substantial evidence to support a final determination on contribution between Virginia Surety and Majestic Insurance. Thus, the Arbitrator reasonably found that the opinion of the panel QME was substantial medical evidence to support a determination that 70% of applicant’s condition arose from the specific injury and 30% was due to the period of cumulative trauma, and to apportion liability between the two carriers accordingly.

© Copyright 2011 LexisNexis. All rights reserved. The Chirinos case will be reported in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.

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