“You’re really here for a panel dispute?” – WCJ
September 6, 2022
When Labor Code Sections 4060, 4061, 4062, 4062.1 and 4062.2 were enacted, the panel Qualified Medical Evaluator (QME) process was supposed to be simpler and less costly. As is often true, the legislation did not necessarily achieve its intended purpose. While the number of QMEs on a case may have diminished, the litigation has not necessarily decreased. We are seeing panel “wars” and the disputes involve much more than just preferred panel specialty.
How many panels does the injured worker get?
In Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418, the applicant filed a claim form with an Application alleging a cumulative trauma injury. Over a year later, he filed an additional two claim forms with two Applications alleging two new specific injuries. Defendant argued that the QME who evaluated the applicant for his CT claim should be the QME to evaluate the applicant’s subsequent specific injuries. The Board found that the Labor Code generally requires an applicant to return to the original QME when a new issue arises under the same claim, or if the applicant reopens that claim, but the Labor Code does not require an applicant to return to the same QME for a subsequent claim or claims of injury. Thus, the applicant was able to obtain a second QME panel. Navarro now stands for the proposition that a party may obtain as many QME panels as there are claim forms.
Later, in Hasley v. Frito-Lay, Inc. (2017 Cal. Wrk. Comp. P.D. LEXIS 134), the applicant alleged a specific injury of 04/08/14. The applicant was pro per when they requested the panel, and the Medical Unit issued a panel, from which Dr. McIvor was selected as the PQME. He evaluated the applicant and issued three supplemental reports. Dr. McIvor issued a final, ratable report and found that the applicant had actually sustained a cumulative trauma not a specific injury. The applicant retained counsel and her attorney filed two Applications – one for the specific date of injury of 04/08/14 and one for a cumulative trauma through 04/08/14. Applicant’s attorney obtained a panel in pain management on the basis of there being multiple dates of injury. Defendant filed a Declaration of Readiness to Proceed, arguing that Dr. McIvor was the PQME in the original specific injury and he is the one that found a cumulative trauma; defense argued that there was only one date of injury since Dr. McIvor found the applicant did not actually sustain a specific injury but rather, a cumulative trauma.
After trial, the WCJ denied applicant’s request for an additional panel. Applicant’s attorney argued that a second panel was warranted to address the cumulative trauma claim based in part on Navarro. The WCAB rescinded the WCJ’s Findings of Fact and returned the cases to the trial level. The Board lacked the necessary information to decide whether a new panel was warranted under Navarro — whether claim forms were filed and, if so, when and what nature of injury was claimed. If no claims forms were filed, the Board found that Navarro did not apply and the parties would return to the original evaluator, Dr. McIvor; if claims forms were filed, then Navarro controlled.
When can the parties start the process?
There are already a string of panel decisions where panels obtained using a delay notice are being upheld. Unfortunately, an even newer trend we are seeing is applicant’s attorneys requesting a panel before even the delay notice is issued. In their opening correspondence, many applicant’s attorneys are sneaking in a demand for a QME. In Brar v. County of Fresno (2021) 86 Cal. Comp. Cases 430, applicant’s attorney sent the claims administrator his opening documents, a letter of representation and a demand for treatment. The following day, he sent a letter to the claims administrator indicating a comprehensive medical-legal evaluation was necessary to determine compensability pursuant to Labor Code sections 4060 and 4062.2. Fifteen days later, applicant attorney requested a pain medicine panel. The WCJ found that the panel was valid and that making a party wait to obtain a panel until the denial or delay notice has issued causes unnecessary delay; the panel upheld this ruling. The Appeals Board in Brar quoted Labor Code section 4060(c) which states: “If a medical evaluation is required to determine compensability at any time after the filing of the claim form…” (emphasis added).
These new trends require claims administrators to be hyper vigilant if they want to have control over the early discovery. Panel requests are usually occurring before defense counsel is hired, and sometimes the panel process is starting at the same time that the administrator receives notice of a claim at all. These new tactics by applicant’s attorneys put pressure on claims administrators to start the panel process in cases where they would not normally do so. For example, if there is an affirmative defense (i.e. post-termination defense) employers do not want a med-legal evaluation to even occur. However, the applicant first has the burden of proving an industrial injury occurred and then the burden moves to defendant to assert the affirmative defense. When injury is disputed, it is almost always necessary to have a med-legal evaluation. So although employers may think a med-legal evaluation is unnecessary, it would be better for claims to start the panel process early so that they can control the specialty.
What about Romero?
The Romero case addresses the question of what happens when a panel is obtained with a pro-per applicant, no evaluation occurs, and then applicant becomes represented. In the Romero case, defendant obtained a panel in the specialty of orthopedic surgery using Labor Code section 4062.1, which controls the panel process with unrepresented applicants. The applicant did not choose a QME so the claims administrator selected the doctor and scheduled an evaluation. The applicant appeared for the evaluation but she left prior to seeing the doctor. She then retained an attorney, who requested a chiropractic panel using Labor Code section 4062.2, the process for represented applicants. In a significant panel decision, the Appeals Board upheld the WCJ’s ruling that the chiropractic panel was valid. The court focused on the fact that the applicant did not submit to and participate in the orthopedic QME evaluation and the fact that she obtained counsel, which moved the process from the unrepresented track (LC 4062.1) to the represented track (LC 4062.2).
Initially, defendants were wary of the Romero decision. However, our perspective shifted when we learned that either party can use Romero. If the applicant goes from unrepresented to represented prior to submitting to a med-legal evaluation, either party may use Romero to obtain a new panel and can change the panel specialty. If defendants use the case, it is generally referred to as a “reverse Romero” panel.
In the cases following Romero, the Court of Appeal and the Appeals Board have continued to interpret and apply the Romero decision. See City of Tracy v. Workers’ Comp. Appeals Bd. (2019) 84 Cal. Comp. Cases 838 (stating that an employee has “received” a comprehensive med-legal evaluation when he attends and participates in an examination with the evaluator); Everson v. State of California, 2018 Cal. Wrk. Comp. P.D. LEXIS 351 (finding that applicant was entitled to a new panel under Romero even though she requested the initial panel); Garcia-Cervantes v. Pitman Farms, 2022 Cal. Wrk. Comp. P.D. LEXIS 3 (defendant was entitled to a Romero panel despite applicant appearing for evaluations with the initial QME that did not go forward due to defendant’s fault in not scheduling an interpreter).
Who settles the dispute?
Initially, Title 8 California Code of Regulations sections 31.1 and 31.5 divided power to resolve panel disputes between the workers’ compensation judges and the Medical Unit. Based on 8 CCR 31.1(a), in a dispute relating to a panel’s validity, the judge holds the power. Alternatively, under 8 CCR 31.1(b), if the dispute centers on the appropriate specialty, the Medical Unit has the power. Rule 31.5(a)(10) provides that the party objecting to specialty needs to tell the Medical Unit who initiated the QME process and what specialty the treating physician is. The objecting party also needs to send copies of the Doctor’s First Report of Injury and reports from the treating physician. The Medical Director will decide the appropriate specialty and any party may appeal that decision to a trial judge. The judge can also issue a decision regarding specialty disputes if the Medical Director does not issue a decision within 30 days of receiving the request. 8 CCR 31.1(c).
Prior case law held that the parties were required to take panel disputes first to the Medical Unit before going to the judge. Portner v. Costco, 2016 Cal. Wrk. Comp. P.D. LEXIS 499 (Noteworthy Panel Decision). However, case law has since issued finding that a judge can order a replacement or additional panel(s) without first consulting the Medical Unit. In Porcello v. State of California (2020) 85 Cal. Comp. Cases 327, defendant objected to applicant’s chiropractic panels, arguing that chiropractic was not an appropriate specialty. Prior to the hearing, defendant took the steps required by the Medical Unit, but at the time of the hearing, the Medical Unit had not issued a decision. The WCJ found that the dispute was premature for decision and that the Medical Unit needed to respond first. However, the Appeals Board granted reconsideration and found that the judge has authority to determine panel specialty disputes prior to or instead of the Medical Unit. The majority and concurring opinions in Porcello specifically disagree with Portner, which means that Portner is essentially overturned.
Subsequent to Porcello, the WCAB explained that if the record includes a determination addressing specialty by the Medical Unit, that the judge will consider that determination. Lopez Contreras v. Randstad North America, 2020 Cal. Wrk. Comp. P.D. LEXIS 121. However, since the Appeals Board has the ultimate authority in deciding the appropriate panel specialty, the Medical Unit’s determination is not dispositive and can be disregarded as non-substantial evidence.
In light of Porcello and Lopez Contreras, the parties should simply file for an Expedited Hearing for a panel dispute. If the trial judge wants an opinion from the Medical Unit, that can be obtained and submitted as part of the record.
Overall, despite the intent of the legislation to curtail litigation by limiting disputes between QME reports, it has had the unintended consequence of increasing litigation at the beginning of claims. As most practitioners understand, the appropriate QME in the appropriate specialty can have a tremendous impact on a case, so the stakes in the panel wars could not be higher.
Brigget K. Barrios, Esq. of our LFLM-Sacramento Office
Laughlin, Falbo, Levy & Moresi, LLP.