WCAB Provides Guidance on QME/AME Process Timing Issues

Wednesday, September 28, 2011 | 0

If there was ever a question the medical-legal process in workers’ compensation has become concerned with tactical minutia rather than dealing with substantive issues in the day-to-day comp practice, the Workers' Compensation Appeals Board's en banc opinion in Tsegay Messele v. Pitco Foods, Inc.; California Insurance Co. should certainly put the issue to rest. In its decision, the WCAB addresses what has become a common practice dilemma of the race to request a QME panel with the reward being the ability to designate the “specialty” of the panel. This case illustrates the all-too-common AME/QME dance with the end point to manipulate the QME process to obtain a perceived advantage in the medical legal process. These tactics have been widely adopted by both applicant attorney and defense attorneys.

In the above named case the applicant was treating with a hand surgeon.  Counsel for defendant objected pursuant to Labor Code Section 4062 and made an offer of an AME on 4/20/10. Applicant attorney responded with an offer of additional AME names made on 4/26/10.  Not receiving a response, applicant attorney filed a request with the Medical Unit requesting a QME panel in the field of pain management indicating, as required by the request form, the injured worker’s treating physician was a hand surgeon and hand surgeon would be the specialty selected by the defendant.  The request was sent on 5/1/1 (the 11th day after the initial letter was mailed).  Defendant filed its own request for a QME panel in hand surgery on 5/4/10 indicating the primary treating physician was an orthopedic surgeon, not indicating any preference for applicant.

The DWC issued panels in pain management at the request of applicant and hand surgery at the request of defendant and left it up to the parties to sort out what happened next. Applicant selected a pain management specialist who examined his client and reported. The case then proceeded to trial with the sole issue being which QME panel was timely and properly requested which included defendant’s contention the selection of a QME panel in pain management was inappropriate (an issue never addressed).  Applicant argued the panel was requested on the 11th day after the offer was made and was therefore timely under Labor Code Section 4062.2 which provides 10 days after written notice of objection with an offer of an AME before a party may file a QME panel request. Defendant argued the five days for mailing extended the time for it to respond and then request the QME panel.

The request by defendant, while sent prior to the 15th day was received by the Medical Unit after that time had run and, defendant argued, was therefore filed with the Unit after the 15th day. The workers' compensation judge essentially agreed with defendant’s position, ruling the time to act to respond to the applicant attorney offer was extended five days by Rule 10507 and therefore applicant’s request was premature while defendant’s request, having reached the Medical unit after the 10-plus-five-day time frame was timely. The decision resulted in applicant’s pain management report not being admissible, presumably not being paid either and applicant being required to attend an evaluation with a hand surgeon from the panel issued at defendant’s request.

Applicant appealed filing a petition for reconsideration. The WCAB initially granted the petition, then determined reconsideration was improperly filed and granted, dismissed the petition for reconsideration and granted removal on its own motion to address the issue.  The WCAB agreed with the WCJ about the five-day extension of time for a party to respond to an AME offer and provided detailed analysis of why the extension applied.  However it disagreed with the WCJ in ruling the defendant’s request was timely as it was generated prior to the 15th day and was required to be sent on the day after the 15th day or May 6, 2010.

The WCAB held:

“,,,(1) when the first written AME proposal is 'made' by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code Section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California;  and

(2) the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.”

The WCAB relied on Rule 10507 which provides a similar extension of time to the Civil Code of Procedure § 1013(a), however the WCAB’s rule applies the five-day extension to service by all means other than personal service, with incremental time frames for out of state and out of country service. Therefore unlike the CCP provision which only provides two-day extension for receipt of documents by fax or email, the five-day extension is applicable across the board.

Since neither party requested a timely QME panel, the case was remanded for the parties to presumably make a new request.  The QME panel race has therefore been reset and it is likely both parties have already mailed in their respective requests for chose specialties…

Comments and Conclusions: Gamesmanship at the WCAB

While it seems the issues in this decision are very technical and at first blush, a “who cares” kind of matter, there has developed over the past few years there has been a kind of gamesmanship between applicants and defendants over who will be first to file the request for a QME panel with the prize being the designation of the QME specialty with the end result being a perceived more favorable specialty for medical legal evaluations.  Applicant attorneys seem to invariably requested either a chiropractor or pain medicine specialist based on the perception such specialists are more likely to be liberally inclined to injured workers while defendants have tended toward the more traditional specialties of orthopedist, neurologist or physical medicine and rehabilitation specialists as their chosen specialties usually, but not always selecting the primary treating physician designation. In the mental health field, applicant attorney will almost always select a psychologist over a psychiatrist, based on a similar perception that specialty is more likely to be liberally inclined.

The tactical approach for this issue is so prevalent the DWC Medical Unit will not accept a QME panel request filed in person (a tactic this author pleads guilty to prior to the rule change as the Medical Unit office is a half-block from my office), by fax or email. Only requests sent by first class mail will be reviewed and a panel issued. Presumably this is to prevent a party who is convenient to the DWC offices in Oakland from speeding up the process by avoiding the one or two days it takes for mail to reach the unit, during which time the opponent having already mailed a request would be aced out by the speedier delivery mode.

The race to filing a QME panel request can also be manifested as a reluctance to make the first move in objecting to the primary treating physician as the opposing party would immediately reject the offer and file a QME panel request with the DWC Medical Unit with the designation of its perceived favorable specialty. Under the current rules at the Medical Unit, a panel will usually issue with a request and the parties may end up at the WCAB arguing over whose request was timely and also whether the specialty designation is appropriate for the condition or an effort at “panel shopping.”

In its decision, the WCAB makes it clear the entire 10-day period is for the purpose of consulting with the opposing party for the purpose of agreeing to an AME, which at the very least puts both parties on the same footing to make a QME panel request regardless of who has made the opening gambit in this chess game.  The decision certainly also indicates premature requests will not result in admissible medical evaluations, something that will require some degree of monitoring by medical examiners to make certain they are not left holding the bag on nonreimbursable medical legal evaluations.

Unfortunately the timing issue in this case is only one of several that comes up in the medical-legal process. The WCAB addressed a different QME timing problem some time ago with a significant panel decision in Romero v Costco Wholesale, ruling on when an applicant was locked into a panel QME evaluation as an unrepresented employee.  We can anticipate additional case law development over time as well as perhaps effort by our new administrative director to revise the rules to provide clearer timing instructions.

In the meantime, I have several objections pending and I have to make certain I get out my panel requests on the 16th day so I can beat my opponents to the punch…

WorkCompCentral subscribers may access the WCAB's ruling here.

<i>Defense attorney Richard M. Jake Jacobsmeyer is a founding partner of the Shaw, Jacobsmeyer, Crain & Claffey law firm in Oakland.</i>