The Ripple Effect of Pretzel Logic

Sunday, April 24, 2005 | 0

In Sandhagen I, the represented applicant, who sustained injury prior to 1/1/05, disputed an untimely adverse UR denial. On 11/16/04, the en banc panel of the WCAB remanded the matter to allow SCIF 20 days to "initiate the QME/AME process" pursuant to LC 4062(a), in order to obtain a medical-legal report resolving the UR dispute, and "neither it nor applicant shall submit the untimely-obtained utilization review report to any QME or AME."

Subsequently, in the Simi case that was decided 2/1/05, the en banc panel of the WCAB determined that the language in LC 4062.2(a) precluded the use of the PQME process, as outlined in LC 4062(b) and (c), for represented workers who sustained injury prior to 1/1/05.

The Simi en banc panel remarked:

"As amended, section 4062(a) now provides, in relevant part, that for represented employees "a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained." In turn, section 4062.2 as amended by SB 899 still allows the parties to agree on an AME but creates a new procedure that eliminates a partys right to select a QME of its choice, substituting a panel QME procedure. However, subdivision (a) of section 4062.2 provides that the statute applies to injured employees who are represented by attorneys and whose disputes arise out of injuries or claimed injuries occurring on or after January 1, 2005. Thus, the Legislature created a new procedure for obtaining medical-legal reports for injuries on or after January 1, 2005, but it did not retain any procedure for injuries before January 1, 2005."

"In the present case there is no operative law other than former section 4062 to provide a procedure for obtaining AME and QME medical-legal reports for cases involving represented employees who sustained injuries prior to January 1, 2005. Therefore, we hold that for injuries occurring prior to January 1, 2005, section 4062, as it existed before its amendment by SB 899, continues to provide the procedure by which AME and QME medical-legal reports are obtained in cases involving represented employees. Accordingly, defendant is entitled to its QME with Dr. Pfeffinger." (Emphasis by author.)

On 2/7/05, the en banc panel of the WCAB issued their decision in Sandhagen II, dismissing the represented applicants petition for reconsideration on the procedural basis it was not an appeal from a "final" order, and accordingly, premature. Although Sandhagen II was dismissed on procedural grounds, and the en banc panel did not "formally" reach the merits of the petition, the WCAB did provide guidance to the regulated community by observing, "We also see no reason why a defendant is precluded from timely initiating the QME/AME process of section 4062(a), if the defendant either decides not to initiate utilization review or does not timely initiate it."

In both Sandhagen I as well as Sandhagen II, the WCAB instructed the defendant to obtain a medical-legal report by complying with LC 4062(a), which in turn directed the parties to either avail themselves of the procedures to resolve the UR dispute set forth in LC 4062.2(b), by agreeing on an AME, or obtain a PQME evaluation through the processes outlined in LC 4062.2(b) and (c).

But in the Simi case, the WCAB en banc panel determined that if there is a dispute requiring a medical-legal evaluation for an employee who sustained an injury prior to 1/1/05, the defendant was to follow the dictates of repealed LC 4062, and obtain a report from its QME of choice.

If the Simi logic (LC 4062.2 is inapplicable to employees who sustained injury prior to 1/1/05) is applied to Sandhagen, the defendant in Sandhagen, SCIF, as well as the represented applicant, Brice Sandhagen, will be forced by the dictates of Simi to obtain an evaluation and report from their respective QME of choice to resolve the UR dispute.

Naturally, represented applicant Brice Sandhagen will find a QME who finds EBM support for provision of the disputed MRI. The defendant, SCIF, will find a QME who finds no support in ACOEM or other EBM studies for provision of the MRI. A DOR will be filed and the WCJ will be faced with "dueling QME" reports addressing whether the denial of an MRI is appropriate or inappropriate.

The defendant in Sandhagen, SCIF, will now be forced to pay for two (2) distinct QME evaluations, both of which will probably be billed as an ML 104 with additional costs for record review; possible LC 5710 fees for deposing either or both QME evaluators; increased legal costs associated with making an appearance at the expedited hearing; a further waste of the courts valuable time and resources; and, an inevitable delay for another applicant waiting to have his case-in-chief tried.

Now, because of the ripple effect of the twisted pretzel logic of the WCAB panels en banc decision in Simi, UR disputes for represented employees will not be resolved by a PQME, but instead by a WCJ faced, at an expedited hearing, with determining which of the "dueling QME" reports is correct regarding the provision of an MRI, which alone will certainly cost less than either QME report.

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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