From the Desk Of: Scott M. Tilley, Esq.
Managing Attorney, San Bernardino
Workers' Compensation Law,
The State Bar of California,
Board of Legal Specialization
Some of you might remember a case a few years ago calledNavarro v. City of Montebello (79 Cal. Comp. Cases 418). That 2014 case confirmed that there may be an entitlement to multiple QME panels where there are multiple claims filed. The opportunity for multiple QME panels applied equally to injured workers and defendants.
In 2016 the WCAB issued a clarifying opinion in Parker v. DSC Logistics (2016 Cal. Wrk. Comp. P.D. LEXIS 402). InParker, the applicant filed the first claim on May 7, 2014. The applicant then filed a second and third claim on September 11, 2014. The parties in all three claims were the same and the body parts overlapped.
An initial QME panel issued and the parties selected a QME. The QME evaluation was on January 9, 2015. On February 23, 2015, Parker requested two additional QME panels, in the same specialty as the first, for the other two claims. The Medical Unit issued the two additional QME panels and defendant filed a Petition to Vacate the two additional panels. The issue went to hearing and the Judge issued an Order denying defendant's petition. The defendant then filed for reconsideration with the WCAB.
In the Navarro case, the WCAB held that a QME has to address all claims and medical issues arising at the time of the evaluation. It further noted that with subsequently filed claims, filed after the initial QME evaluation, the employee is not required (nor is the defendant) to return to the same QME. This is true even if all claims involve the same body parts and same parties.
In Parker, the WCAB clarified its position on this issue. The WCAB confirmed that where all claims are filed before the initial QME evaluation, Labor Code Section 4062.3 (j) and Rule 35 (c)(1) require the QME to address each claim of injury.
T he bottomline is when we are dealing with multiple claims that are all filed prior to the initial QME examination, that QME has to address all claims and neither party is entitled to additional QME panels in the same specialty just because there are multiple claims. However, where additional claims are filed after the initial QME evaluation, the parties may be entitled to additional QME panels.
QME Panels During the 90-Day Investigation Period
Another interesting trend involving QME panels has recently been brought to light in the case of Sanchez v. Grapevine Catering (2016 Cal. Wrk. Comp. P.D. LEXIS 136). InSanchez, the defendant issued a delay letter. Shortly thereafter, and before a denial, the applicant's attorney requested a QME panel under Labor Code section 4060 (a compensability QME panel). The defendant objected to the QME panel request made by applicant's attorney and the matter founds its way to the WCAB.
The WCAB concluded that Rule 30(d)(1) states that a defendant may request a QME panel during the 90-day investigation period. The WCAB went on to note that the Labor Code and the Rules are silent regarding an employee's right to request a QME panel during the investigation period. The Board then found that per Labor Code Section 4062.2, either party may request a QME panel and that allowing defendants, and not applicants, to request a QME panel during the investigation period would be invalid.
The bottomline is that both sides may request a QME panel on compensability during the 90-day investigation period. This situation is starting creep up in claims in our office. An applicant's attorney will request a QME panel after the delay notices issue and will request a specialty that is not preferable (i.e., pain management or chiropractic). If you suspect an applicant's attorney will engage in this tactic, you might want to consider requesting the QME panel during the delay period yourself and requesting a better specialty for your specific case.