© Copyright 2014 LexisNexis. All rights reserved.
I. Evolution of the Current Panel QME Process
The Panel QME process has evolved in interesting ways over the years. For dates of injury prior to 2005, the panel QME process did not exist. Instead, medical disputes were resolved by Qualified Medical Examiners (QMEs) chosen by the parties, or by a single Agreed Medical Examiner (AME) selected by the parties. At an expedited hearing, evidence in the form of several different medical reports were presented from all medical evaluators, including the primary treating physician (PTP), the injured worker’s QME, the defendant’s QME along with any surgical reports or reports from previous PTPs.
Without a medical school background, judges were required to sort through the complicated medical lingo of the often conflicting opinions of the different physicians to determine what treatment was reasonable and necessary for a particular injured worker.
In order to abolish “doctor shopping,” streamline the evaluation process and obtain substantial evidence on med-legal determinations, a Panel QME (PQME) process was created. On 4/19/04, through SB 899, the legislature amended LC Section 4062, to create a new procedure for obtaining medical-legal reports for injuries on or after January 1, 2005. (See Simi v. Sav-Max Foods, Inc. (2005) 70 Cal. Comp. Cases 217 (lexis.com), 70 Cal. Comp. Cases 217 (Lexis Advance)) This new med-legal procedure described in LC Section 4062.2 provides that represented parties may either agree to an AME or follow the Panel QME process.
In 2012 this process was tweaked a bit by the legislature when a new medical treatment dispute paradigm was mandated by SB 863. After July 1, 2013, for all dates of injuries, all medical treatment disputes are now to be resolved through Utilization Review (UR) and if appropriate, appealed through the Independent Medical Review process (IMR). It is the intent of SB 863 that neither the AME nor the PQME will resolve medical treatment disputes. That determination will be the sole purview of UR and IMR.
In fact, the Labor Code was amended and regulations were adopted to clarify and emphasize this position.
LC § 4062.2.(f) now states, “The parties may agree to AME at any time, except as to issues subject to the IMR established pursuant to LC §4610.5.” (Emphasis added.)
New QME Reg § 35.5(g)(2) states:
“For any evaluation performed on or after July 1, 2013, pursuant to Labor Code Section 4061, and regardless of the date of injury, an Agreed Medical Evaluator or Qualified Medical Evaluator shall not provide an opinion on any disputed medical treatment issue, but shall provide an opinion about whether the injured worker will need future medical care to cure or relieve the effects of an industrial injury.” (Emphasis added.)
II. Good Cause for Requesting Replacement of the Panel QME
Even though Panel QMEs will no longer be resolving medical treatment disputes, there are still many areas of evaluation in which their expertise will be critically helpful, such as, the nature and extent of future medical treatment, the determination of whole person impairment and apportionment, among other issues. Therefore, the Panel QME process is still a very valuable tool for workers’ compensation practitioners.
In the past several years, parties have encountered some glitches when using the panel QME process and on occasion have availed themselves of the right to request a replacement QME panel. Summarized below are some of the reasons a replacement QME panel may be requested per 8 CCR 31.5(a):
1. QME does not practice in specialty requested.
2. QME cannot examine the applicant within 60-90 days.
3. Injured worker changed residences.
4. Panel QME is a member of same practice group as another member of the panel.
5. QME not available.
6. Panel QME is the treating physician for the disputed injury. (See also 8 CCR 41(a)(4))
7. Parties agree to QME within region of applicant’s workplace, and original QME panel is outside this region.
8. Medical documentation indicates different specialty required.
9. Panel QME did not send out appointment notification.
10. QME issued a late report.
11. QME had a conflict of interest.
12. Panel QME does not provide complete medical evaluation, or QME is not medically qualified to address disputed issues.
13. Panel issued over 24 months ago, and no QME from that panel was used.
In addition, LC 4062.3 and 8 CCR 35(k) allow for replacement of the QME panel when there has been an ex parte communication violation.
A replacement QME Panel may also be warranted when the initial panel QME produces a report that does not constitute substantial evidence.
However, confusion has abounded as to what constitutes good cause to request a replacement of the QME panel for one of the reasons listed above. The following is a list of recent WCAB Noteworthy Panel Decisions (NPD) dealing with the Panel QME replacement process:
1. Geiger v. Brayton Purcell, 2013 Cal. Wrk. Comp. P.D. LEXIS 256 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 256 (Lexis Advance); Replacement warranted due to ex parte communication violation per LC 4062.3 and 8 CCR 35(k).
2. Torres v. Pacific Coast Products, 2013 Cal. Wrk. Comp. P.D. LEXIS 287 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 287 (Lexis Advance); Ex parte communication by applicant’s daughter did not warrant a Panel QME replacement.
3. Frost v. East Bay Municipal Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 623 (lexis.com), 2012 Cal. Wrk. Comp. P.D. LEXIS 623 (Lexis Advance); Ex parte communication by applicant’s wife did not warrant a Panel QME replacement.
4. Azimzadeh v. Burg & Brock, 2013 Cal. Wrk. Comp. P.D. LEXIS 241 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 241 (Lexis Advance); Medical legal reports by Panel QME did not constitute substantial evidence. Remedy is not an Order to replace the QME panel, but to develop the record pursuant to McDuffie v. L.A. County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138.
5. Huerta v. Higgins & Lovett Construction, 2013 Cal. Wrk. Comp. P.D. LEXIS 311 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 311 (Lexis Advance); Panel QME’s rating determination did not constitute substantial evidence. Remedy is not an Order to replace the QME panel, but to develop the record pursuant to McDuffie v. L.A. County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (lexis.com), 67 Cal. Comp. Cases 138 (Lexis Advance).
6. Ramirez v. 3 Day Blinds Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 277 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 277 (Lexis Advance); Panel QME’s untimely supplemental report did not warrant a Panel QME replacement.
7. Carmen v. Sodexo Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 280 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 280 (Lexis Advance); QME prescribed CPAP in violation of 8 CCR 41 prohibiting QME from providing treatment for the applicant. QME was not replaced because removal is not mandatory under Rule 41. WCJ may use discretion and balance all respective interests.
III. Effect of Ex Parte Communication With the Panel QME
The first three cases listed above deal with ex parte communications and violation of LC Section 4062.3(g) which provides:
“(g) Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation.”
Rule 35(k) also prohibits ex parte communication with QMEs as follows:
“If any party communicates with an evaluator in violation of Labor Code section 4062.3, the Medical Director shall provide the aggrieved party with a new panel in which to select a new QME or the aggrieved party may elect to proceed with the original evaluator. Oral or written communications by the employee, or if the employee is deceased by the employee’s dependent, made in the course of the examination or made at the request of the evaluator in connection with the examination shall not provide grounds for a new evaluator unless the Appeals Board has made a specific finding of an impermissible ex parte communication.”
In the second DCA case of Alvarez v. Workers’ Comp. Appeals Bd. (2010) 75 Cal. Comp. Cases 817 (lexis.com), 75 Cal. Comp. Cases 817 (Lexis Advance), the court held,
“…that section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with no exception based on the initiator of the communication or for "administrative" matters. Nevertheless, because a certain degree of informality in workers' compensation procedures has been recognized, not every conceivable ex parte communication permits a party to obtain a new evaluation from another panel qualified medical evaluator…”
The court returned the matter to the trial level for a decision consistent with the DCA’s interpretation of the LC Section 4062.3. As a result, several panel decisions have issued lately testing that boundary.
A. Geiger v. Brayton Purcell, Travelers
In the Noteworthy Panel Decision of Geiger v. Brayton Purcell, 2013 Cal. Wrk. Comp. P.D. LEXIS 256 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 256 (Lexis Advance), the court found an improper ex parte communication by the applicant that violated LC 4062.3(g), and the court ordered a new QME Panel issue.
In this case, the applicant, while unrepresented, had been examined by a Panel QME in psychiatry for her stress related claim. She had some issues when his report was served and wrote a letter to him explaining what she considered to be factual inaccuracies in his report. The QME responded in writing to her concerns and served this supplemental report on both sides. Subsequently, the matter proceeded to trial on the issue of whether the injury arose out of and occurred in the course of employment (AOE/COE) among other issues.
Although not raised by the defendant, the WCJ interpreted the applicant’s post-exam communication with the Panel QME as an improper ex parte communication. She vacated her submission Order and mandated that the Medical Unit issue a new QME Panel in the area of psychiatry and develop the record on the various medical-legal issues.
Applicant filed a Petition for Removal from this Order, claiming that she had served opposing counsel with her correspondence to the doctor. Therefore, no ex parte communication had occurred. The WCJ did not find any evidence in the record to support applicant’s contention that she had served opposing counsel with a copy of her letter to the panel QME. The WCAB affirmed the WCJ’s order.
It’s interesting that as a side note to this case, as part of the SB 863 reform law, LC 4061(d)(1) was amended to address this exact issue as follows:
“Within 30 days of receipt of a report from a qualified medical evaluator who has evaluated an unrepresented employee, the unrepresented employee or the employer may each request one supplemental report seeking correction of factual errors in the report. Any of these requests shall be made in writing. A request made by the employer shall be provided to the employee, and a request made by the employee shall be provided to the employer, insurance carrier, or claims administrator at the time the request is sent to the evaluator.”
Therefore, if Geiger, supra, had been a post SB 863 case and if the applicant in that case had entered a proof of service for her letter to the QME “seeking correction of factual errors in the report” into evidence, her action may well have not constituted an ex parte violation, at least under the new law.
B. Torres v. Pacific Coast Products
In the NPD of Torres v. Pacific Coast Products, 2013 Cal. Wrk. Comp. P.D. LEXIS 287 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 287 (Lexis Advance), defendant objected to communications of the applicant’s daughter to the Panel QME during the QME’s exam of the applicant. The WCAB noted that no ex parte communication had taken place, since by definition, in order to be a violation, the communication must be between a party and the QME. In this case, the applicant’s daughter was not a party to the action.
The WCAB noted that the communication may have risen to the level of non-medical illicit communication. They emphasized that it is permissible for parties to provide “nonmedical” information to the QME, absent objection from the opposing party. In this case, defendant could have objected to this alleged “illicit communication,” but waited two years after the communication to do so.
Therefore, the WCAB held, “If defendant wished to object and obtain a new QME panel, it had a reasonable time to do so. However, two years is not a reasonable time.” The Order denying defendant’s request for a new QME Panel was affirmed.
C. Frost v. East Bay Municipal Utility District
In the NPD of Frost v. East Bay Municipal Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 623 (lexis.com), 2012 Cal. Wrk. Comp. P.D. LEXIS 623 (Lexis Advance), the applicant’s wife had a telephone conversation with the Panel QME. Although the WCJ found the wife not to be a party in the case and therefore not subject to the ex parte communication restrictions, the WCAB did not seem to factor that issue into its holding and noted, “…we do not adopt or incorporate the WCJ’s suggestion that an applicant’s wife is not a ‘party’ for purposes of Labor Code section 4062.3(f).”
Nevertheless, the WCAB agreed with the WCJ’s assessment that a replacement panel was not appropriate under these circumstances. During the psych exam of the applicant, the applicant stated that his memory was poor and instructed the QME to call his wife for more details on the issues. The QME did phone his wife during the exam who provided some clarification. That was the extent of their communication which again, occurred during the exam. The WCJ noted (and the WCAB agreed) that this communication did not occur either “prior to or subsequent to the physician’s exam,” which may well have triggered a violation of the ex parte communication legislation.
The WCAB analogized this scenario to a psychiatric evaluation where “it may be appropriate for the medical evaluator to interview the applicant’s spouse to confirm or expand on the narrative that the applicant has given to the evaluator.”
Since all communications were disclosed, the WCAB failed to see a reason to replace the panel QME, and noted that the defendant always had “the option of deposing the present PQME to determine what effect, if any, the input from the applicant’s wife had on the doctor’s opinion.
IV. Report of Panel QME Does Not Constitute Substantial Evidence
The NPD of Azimzadeh v. Burg & Broc , 2013 Cal. Wrk. Comp. P.D. LEXIS 241 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 241 (Lexis Advance), provides an excellent refresher course as to what elements are required of a medical legal report in order for it to constitute “substantial evidence.” A summary of these elements are listed below:
1. Opinion must be based on “reasonable medical probability.”
2. The report must contain a legally compliant apportionment discussion pursuant to LC 4663.
3. A medical report cannot be “predicated on incorrect legal theory.”
In Azimzadeh, supra, the injured worker was involved in a non-industrial car accident prior to her industrial injury. The same body parts, the neck, shoulders and back, were involved in both the industrial injury and non-industrial injury. When the Panel QME in this case issued his report, he failed to include a legally compliant discussion of apportionment.
The case went to trial, where the defense requested that the Panel QME reports be stricken since they did not constitute substantial evidence. The WCJ issued a Findings and Order striking the medical reports. He also issued an Order that the Medical Unit issue a replacement QME Panel, since the initial Panel QME’s reports did not constitute substantial evidence.
Applicant filed a Petition for Removal, which was granted by the WCAB. The WCAB agreed with the WCJ that the Panel QME’s medical reports did not constitute substantial evidence for the reasons listed above. However, they rescinded the Order for a Replacement Panel and mandated that the record be developed in accordance with the case of McDuffie v. L.A. County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138, 141 (lexis.com), 67 Cal. Comp. Cases 138 (Lexis Advance) (Appeals Board en banc); see Lab. Code, §§ 5701, 5906.) The WCAB stated:
“The McDuffie case describes the procedure for developing the record. Generally, parties are directed to acquire supplementary reports from physicians who have already written reports. (Id. at p. 142.) "[I]f the supplemental opinions of the previously reporting physicians do not or cannot cure the need for development of the medical record," the parties should consider an agreed medical evaluator (AME). (Ibid.) If the parties are unable to select an AME, then the WCJ may appoint a regular physician pursuant to Labor Code section 5701. (Id. at 142-143.)
A similar approach was taken in the Noteworthy Panel Decision of Huerta v. Higgins & Lovett Construction, 2013 Cal. Wrk. Comp. P.D. LEXIS 311 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 311 (Lexis Advance). When the Panel QME issued a med-legal report that did not constitute substantial evidence with regard to the whole person impairment rating, the WCAB vacated the WCJ’s decision and returned the matter to the trial level. Rather than replace the Panel QME, the parties were ordered to develop the record pursuant to the WCAB en banc decision of McDuffie v. L.A. County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (lexis.com), 67 Cal. Comp. Cases 138 (Lexis Advance).
The recent trend in WCAB decisions appears to be that they are using the Replacement QME Panel remedy rather sparingly. Rather than finding excuses to replace the QME, they seem to be leaning toward finding reasons to keep the initial Panel QME, despite some compliance aberrations. This was true with the last two Panel QME decisions cited in the listing of WCAB NPDs in Part II, above: Ramirez v. 3 Day Blinds Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 277 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 277 (Lexis Advance), and Carmen v. Sodexo Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 280 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 280 (Lexis Advance). Both of these NPDs involved violations of the QME regulations, but were deemed not to be significant enough to warrant replacement of the QME Panel.
Also, when the record needs to be developed because the Panel QME’s report does not constitute substantial evidence, the remedy is to follow the procedures set forth in McDuffie, supra, rather than start the process all over again with a new QME Panel.
Parties might wish to keep these trends in mind when struggling over whether to request a replacement QME Panel or opt instead for development of the record under McDuffie, supra, or find a way to keep the initial Panel QME.
© Copyright 2014 LexisNexis. All rights reserved. This article was reprinted from the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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