California: W.C.A.B. Affirms Prior En Banc Decision Re: ADR 35.5(e) as Invalid

California: W.C.A.B. Affirms Prior En Banc Decision Re: ADR 35.5(e) as Invalid

The W.C.A.B. has issued its follow-up decision in the previously issued en banc decision in Navarro v. City of Montebello. In its original decision the W.C.A.B. had issued a notice of intent to rule that Administrative Directive Rule 35.5(e) is an invalid interpretation of the provisions of Labor Code concerning medical-legal evaluations. That rule had limited injured workers and employers from electing to obtain a different medical-legal evaluator in cases where subsequent claims of injury were asserted and the injured worker had already undergone a QME evaluation. Rule 35.5(e) required in such circumstances the employee to return to the same QME to the extent possible.

The W.C.A.B. in its new en banc decision confirmed its original determination that such a regulation was not supported by statute.

After issuing its initial notice of intent the W.C.A.B. appears to have received a brief from defendant on this issue and although one was invited from the DWC there does not appear to have been a response. The Board's rationale was identical to its original decision with the relevant determination being as follows:

“Based upon our review of the relevant statutes and case law we 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 therefore, this requirement is invalid.”

The injured worker in this case claimed injury by alleging a cumulative trauma through February 9, 2009 and was evaluated by a panel QME. Subsequent to that evaluation he filed additional claims for specific injuries with some overlapping body parts (but not all). Defendant petitioned to compel evaluation of the applicant's two subsequent claims using the original panel QME but without asserting the need to have a re-evaluation for the prior cumulative injury. Applicant objected, arguing Rule 35.5(e) was invalid as an interpretation of the parties’ rights. The trial judge agreed with applicant and declined to order a re-examination with the same physician.

In issuing its decision the Board focused on the language of Labor Code §§ 4060(c) through 4067 which seem to suggest the provisions apply where a single claim form is filed. In the Board’s analysis the sections did not suggest application where there are multiple claim forms filed. The Board noted the reference to multiple claims in Labor Code § 4062.3(j), which provides:

“Upon completing a determination of the disputed medical issue, the medical evaluator shall summarize the medical findings on a form prescribed by the Administrative Director and shall serve the formal medical evaluation and the summary form on the employee and the employer. The medical evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee's initial appointment with the medical evaluator.”

Similarly, Labor Code § 4064(a) indicates that medical-legal evaluations shall address all contested medical issues arising from all injuries reported on one or more claim forms.

The W.C.A.B. then determined that for the two new dates of injury, the applicant was entitled to a new QME evaluation from a QME panel.


The issue in this case is one which comes up fairly often and is one which can work to the advantage of either side. Consequently, the specific result in this matter is probably in the long run not as significant as the fact that we now have a decision which provides an answer to future case with this issue. Certainly, I, along with many of my brethren, have had cases where we would love to have obtained an evaluation with the same Qualified Medical Examiner who previously evaluated the applicant and on the other hand we have multiple cases where we would prefer to have a new QME evaluate the injured worker. Similarly, applicants’ attorneys find themselves falling on both sides of the fence on this issue.

The decision in this matter probably does not benefit either applicants or defendants in the overall scheme. However, the fact that we now have an answer to whether either party can force an evaluation with the same Qualified Medical Examiner where there are new claims filed is something which should make the overall system run more smoothly and result in fewer arguments over appropriate medical-legal evaluations.

One issue that the Board certainly made clear is that any QME evaluation is to provide a report that covers all claimed injuries prior to the date of the evaluation. Consequently, this is not an opportunity to obtain multiple medical evaluations based on filing multiple claims simply because there is more than one claim form. A QME is to report on all existing claims that have been filed prior to the day of the evaluation.

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

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