California: What to Consider Before Filing a Request for a Panel QME

By David Bryan Leonard, Esq.

Speaking at the California Workers’ Compensation Defense Attorneys’ Association 2013 Winter Conference, counsel for the Division of Workers’ Compensation James A. Fisher and defense attorney Yvonne E. Lang detailed the process for obtaining a panel QME from the Medical Unit.

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The first step is to consider whether you have a dispute that can be addressed by the QME process? Some issues are eligible for the QME process and others are not. Examples of ineligible issues include medical treatment disputes, utilization of MPNs, and the reasonableness of past treatment. Mr. Fisher noted that other dispute mechanisms now exist such as the Independent Medical Review (IMR) process detailed in Labor Code Sections 4616.3 and 4616.4 [LC 4616.3, 4616.4] or the expedited hearing process set forth in Labor Code Section 5502 [LC 5502]. Issues regarding the nature and extent of treatment are now resolved through the application of Utilization Review and the IMR process.

To determine if a dispute exists, Mr. Fisher directed participants to California Code of Regulations, Title 8, section 9785 [R 9785]. This regulation details the duties of the treating physician and the impact of medical determinations addressing any aspect of an employee’s eligibility for compensation benefits. In analyzing whether or not to request a panel QME, and excluding medical treatment issues subject to IMR, it is important to identify which portion of the primary treating physician’s (PTP’s) determination is being contested.

Next, the three general categories of QME requested were reviewed. [As a general overview it is noted that Labor Code Section 4060 [LC 4060] concerns the threshold question of injury AOE/COE. Specifically, did the employee sustain an industrial injury? Section 4060 does not apply when any body part is accepted as compensable by the employer. Labor Code Section 4061 [LC 4061] is triggered if either the employee or employer objects to a medical determination made by the treating physician concerning the existence or extent of permanent impairment and limitations or the need for future medical care. It does not include utilization review disputes stemming from Labor Code Section 4610 [LC 4610] or to an employee's dispute of the medical provider network treating physician's diagnosis or treatment recommendations under Labor Code Sections 4616.3 and 4616.4 [LC 4616.3, 4616.4]. Finally, Labor Code Section 4062 [LC 4062] applies if either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610.]

The participants were encouraged to take time to correctly complete the DWC Form 105 or 106 filed with the Medical Unit. Make sure to include the proof of service to the opposing party, and to designate a medical specialty for the panel requested. Also provide information about the panel preferred by the other side, along with the specialty of the treating physician if known.

For both Labor Code Sections 4061 and 4062 examinations, with either represented and unrepresented applicants, California Code of Regulations, Title 8, section 30 [R 30] requires that the request for a panel QME include as an attachment the written objection indicating the identity of the primary treating physician, the date of the primary treating physician's report that is the subject of the objection and a description of the medical determination that requires a comprehensive medical-legal report to resolve. For contested claims, a request for an examination to determine the compensability under Labor Code Section 4060 should be included along with the claim denial letter. Under Rule 30, subsection (c), if the panel QME request is not complete, or improperly completed, the panel QME request form will be returned to the requesting party with an explanation of why the QME panel selection could not be made. In addition, the Medical Director may also delay issuing a new QME panel until the Medical Director receives additional reasonable information requested from a party or both parties needed to resolve the panel request.

Requests for panel QME replacement is governed by Rule 31.5 [R 31.5]. In response to a question, Mr. Fisher explained that if the proper grounds exist, there is currently no limit to the number of replacement panels that may be requested. On the issue of multiple specialty requests for the same body part, the Medical Unit is currently processing all requests on a mechanistic basis. Due to the boxes of information processed on any given day, each PQME request is viewed in isolation of other requests. Currently, the Medical Unit is not in the position to make substantive determinations on each PQME request. Once the backlog is resolved, it is anticipated that more robust QME specialty request filtering will occur.

[Authors note. This article represents a combination of the lecture, syllabus, and reference to applicable rule or statute where educationally appropriate.]

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