California: The Right to Select the Specialty of the Panel QME: Whose Choice Is It Anyways?

California: The Right to Select the Specialty of the Panel QME: Whose Choice Is It Anyways? subscribers can link to the citations below.
Prior to the passage of Senate Bill 899, both sides maintained the right to select their own QME. Inherent in the use of “battling QME’s” was also the right to decide what type of specialist a party would utilize. Where a back injury was involved, for example, a party could select from a wide range of specialists to evaluate a particular case. These might include an orthopedist, neurologist, chiropractor, pain management physician or possibly a physiatrist. A party might make this decision based on a number of factors. Regardless of the reasons why a party might choose a particular specialty, there can be no question that the right to make that choice could be strategically very important in determining the outcome of a workers’ compensation case.
It is for this reason that the WCAB is seeing litigation over the question of who maintains the right to select the specialty of the panel QME. There are numerous factors that must be considered in deciding which party gets to choose. Recently, a WCJ and subsequently a panel of commissioners with the WCAB looked at what must be included in the notices sent to the injured worker before the defendant can claim to have the right to determine the specialty of the QME.

In Loftin v. County of Sacramento, 2012 Cal. Wrk. Comp. P.D. LEXIS 245, applicant, while employed as a community services officer on August 14, 2009, sustained an industrial injury to her neck and shoulder. On August 18, 2011, defendant sent her a notice that she had received her last permanent disability payment and that “if you disagree with our decision you may” request a panel of QME’s. Applicant, who was unrepresented, did not request a panel. On October 12, 2010, the parties submitted Stipulations with Request for Award with a stipulation to 5% permanent disability based upon the evaluation of the treating physician. On October 13, 2010, the WCJ disapproved the stipulations, noting: “among other issues Dr. Robertson [the treating physician] indicates the neck is part of this injury.” On September 14, 2011, the WCJ again disapproved the settlement.

On September 19, 2011, defendant filed a Declaration of Readiness to Proceed (DOR), requesting a mandatory settlement conference (MSC) on the issues of permanent disability and apportionment. Applicant did not object to defendant’s DOR. At the MSC on October 26, 2011, the WCJ ordered applicant to obtain a QME panel, stating, “Absent a request from the employer to the injured worker to submit the form, applicant retains the right to select the specialty of the panel.” The WCJ also noted: “Defendant believes that they are entitled to pick the specialty of the panel QME. The August 18, 2011 benefit notice does not ‘request’ the employee to obtain a panel QME”.

Defendant filed a petition for reconsideration. On reconsideration, with regard to choice of the QME specialty, the commissioners noted that Labor Code section 4062.1(b) provides in relevant part: “However, the employer may not submit the form unless the employee has not submitted the form within 10 days after the employer has furnished the form to the employee and requested the employee to submit the form. The party submitting the request form shall designate the specialty of the physicians that will be assigned to the panel”. (Emphasis added)

The commissioners further observed that Administrative Director Rule 31(a) provides: “The panels shall be selected randomly from the appropriate specialty identified by the party who holds the legal right to designate the specialty”. In the case at hand, the commissioners found that the employer’s notice to applicant informed applicant of her option to obtain a panel of QME’s, but it did not request that she submit the form to obtain the panel. As the form did not include the required language, the commissioners found that applicant never lost the legal right to designate the specialty of the QME.

Indeed, in Loftin, there was no indication that defendant had any objection to the determinations of the treating physicians or wished to obtain a QME evaluation to contest them. Based on this, the commissioners concluded that the WCJ was correct and that defendant was not entitled to submit the QME request form or to designate the specialty of the QME panel.

This case highlights the necessity of having the required language in the benefit notices that are provided to the injured worker. Though the benefit notice here clearly advised applicant that if she objected to the defendant’s reliance on the treating physician she may request a panel, this was not adequate. The notice must do more than to merely advise the applicant of her right to request a panel. It must tell her to request one.

As the specific language of the notice that is sent to the applicant may determine who has the “legal right to designate the specialty” of the QME, defendant’s would be well advised to pay particular attention to the language that they include in this particular notice. 

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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