Getting a Panel on a Denied Case in California

Getting a Panel on a Denied Case in California

There may be confusion about the effect of Rule 30(d)(3) of the Administrative Director’s Rules and Regulations on denied cases. I have heard more than one adjuster express the opinion that he or she was precluded from objecting to the treating doctor’s MMI report because the case was denied. Some attorneys have expressed a similar opinion. Reportedly, even a judge from a District Office in the Los Angeles area made a representation to a seminar audience that would seem to misinterpret the rule. We wanted to take this opportunity to closely examine the rule and the statute to which it refers, to see if we can shed some light on what the rule covers, and what it does not.

Here is the text of the Admin. Rule: 30(d)(3): “Whenever an injury or illness claim of an employee has been denied entirely by the claims administrator, or if none by the employer, only the employee may request a panel of Qualified Medical Evaluators, as provided in Labor Code sections 4060(d) and 4062.1 if unrepresented, or as provided in Labor Code sections 4060(c) and 4062.2 if represented.”

As has been widely discussed, Rule 30(d)(3) would preclude the defendant from requesting and obtaining a Panel Qualified Medical Evaluation if the case is denied before the panel request is submitted. In some cases, a way around this prohibition might be to keep the case under investigation and not issue a denial until after the panel request is submitted. This strategy, however, can expose a defendant to up to $10,000 in medical treatment costs prior to the issuance of the denial.

Is there an alternative? Once a case is denied, is the defendant precluded from ever obtaining a panel QME? We don’t think so. Take another careful look at the wording of the rule. It says that only an employee may request a panel “as provided in…Labor Code sections…4060(c) and 4062.2 if represented.” To fully understand what this means, we have to backtrack and read Labor Code §4060(c), which states: “ If a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2.”

Nothing we see in Rule 30(d)(3) refers to any code sections other than 4060(c) and 4060(d) and those code sections only address the situation where a doctor’s opinion is being used to determine compensability of a claim. In fact, Labor Code §4060 only applies to cases and examinations where there is a medical question as to injury AOE/COE.

On the other hand, Labor Code §4062 is still alive and well, and begins with these words: “(a) 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…” Any “issues not covered” leaves a wide assortment of potential issues other than the compensability of a medical condition, and would include such things as MMI status (or lack of it) of the injured worker. We believe, therefore, that while the defendant is precluded from requesting a panel examination early in a denied case, there is still the availability of issuing an objection under LC §4062 at an appropriate time during the ensuing medical treatment. If done properly, a request for assignment of a QME panel should be honored by the DWC. Such a request must include, as an attachment, the objection letter pursuant to LC 4062 and that letter must state with specificity the issue(s) to which objection is being rendered.

At this point we have been asked, when the panel issues and a doctor is selected, may the doctor comment on medical compensability? We say “Yes.” This is because of another helpful statute, Labor Code §4062(c) which provides:

“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.” Thus, even though the dispute is raised pursuant to some other issue, if medical compensability (as opposed to a statutory defense) remains in issue, it would appear the panel QME will have to comment on that issue as well.

We admit we have seen no binding case law on this issue, we did discuss the subject with certain respected judges locally and it would appear the majority would hold with our argument in this regard. While rule 30(d)(3) does limit our options on previously denied cases, we do see the potential for obtaining a QME panel at an appropriate time.

 Article by Howard Stevens.

© Copyright 2010 by McDermott & Clawson, LLP. This article was reprinted with permission from the firm's Legal Briefs Newsletter March 2010.