One of the most common complaints that arise in the life of a worker’s compensation case, from a defense perspective, is applicants requesting additional QME panels.
Additional panels increase permanent disability exposure and escalate litigation costs. Also, there is a general suspicion that applicants attorneys are going on a unwarranted fishing expedition when requesting additional QME panels, particularly when the alleged injuries are described as “skin and contents.”
There are important considerations when evaluating whether to dispute a request for an additional panel. Ordinarily, where defendant has accepted liability for an injury, the compensability of an additional body part is a medical determination to be made by the primary treating physician subject to objection under Labor Code § 4062. (See Lab. Code 1, § 4060(a).)
In cases where the applicant is being provided treatment, the parties must first obtain the opinion of the primary treating physician who “shall render opinions on all medical issues necessary to determine the employee’s eligibility for compensation” according to Labor Code § 4061.5 and Cal. Code Regs., tit. 8, § 9785(d).
In cases where an additional body part is outside the expertise of the primary physician, the primary physician should refer applicant to a secondary physician who “shall report to the primary physician in the manner required by the primary physician.” This is pursuant to Labor Code § 9785(e)(3).
Then, the primary physician “shall be responsible for obtaining all of the reports of the secondary physicians and . . . incorporate, or comment upon, the findings and opinions of the other physicians[.]” (Labor Code § 9785(e)(4).)
Once the parties receive the report of the primary treating physician that incorporates or comments upon the compensability of the additional body part, either party may object to the primary physician’s report pursuant to section 4062 and request a QME panel.
These steps are frequently disregarded by applicants, who instead insist that the existing QME simply refer the parties to a QME in a new specialty. Unless there is a dispute initiating from the PTP, followed by a proper objection, the Medical Unit should not issue an additional panel.
In cases where an existing QME has issued a comprehensive medical-legal report and a new medical dispute arises, the parties, to the extent possible, must obtain a follow-up evaluation or a supplemental evaluation from the same evaluator. (8 CCR 31.7.) If this is not possible, then either party can petition for an order for an additional panel. (8 CCR 31.7(b).)
Upon a showing of good cause that a panel of QME physicians in a different specialty is needed, the Medical Director must issue an additional panel of QME physicians in the specialty requested. “Good cause” means either a written agreement by the parties or an order by the WCAB for a QME panel. Therefore, there must be a finding, based on medical evidence, that an additional evaluation is reasonable and necessary to resolve disputed issues under Labor Code sections 4060, 4061 or 4062. (8 CCR 32.6.)
From a practical standpoint, defendants can avoid an order for an additional panel by conducting discovery, which includes deposing the QME or PTP who is referring the parties to an additional panel.
Defendants should question whether there is substantial medical evidence supporting the request for an additional panel, or whether the doctor simply deferring on a claim that is fundamentally baseless. For example, a request for an internal QME panel based upon only subjective claims, by itself, may be insufficient. In short, defendants should make applicant prove up their request for an additional panel by disputing the evidence they are relying upon.
Additional panels can also work to defendant’s favor. In situations where applicant has received a chiropractic panel, defendant can request a more appropriate (and perhaps more conservative) panel, for example in orthopedic surgery.
Rule 35.5 provides that the QME must “address all contested medical issues…within the evaluator’s scope of practice and areas of clinical competence.” (Cal. Code Regs., tit. 8, § 35.5(c)(1).) The QME must advise the parties at the “earliest opportunity…of any disputed medical issues outside of the evaluator’s scope of practice and area of clinical competency” so the parties may obtain an additional panel in another specialty. (Cal. Code Regs., tit. 8, § 35.5(d).)
In the event a chiropractic QME is unable to address all of the disputed issues, such as surgery, the parties may seek an additional panel in another specialty under 8 CCR § 31.7(b). Thus, if there are disputed medical issues that the chiropractic QME is unable to address, the QME must address the issues they are able to address and to advise the parties of any disputed medical issues outside of their scope of practice and area of clinical competency. An additional panel in a more conservative specialty may rescue a claim that is mired in a chiropractor’s reporting.
Additional QME panels will likely continue to raise concerns for defendants. But knowing the requirements and procedure surrounding these issues can prevent a claim from devolving into an endless morass of QME evaluations in multiple specialties.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about QME panels or any other workers’ compensation defense issues, feel free to contact Michael at mburns@bradfordbarthel.com or (408) 392-8202.
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