Messele: How to Obtain a Proper QME Panel and an Admissible Report

Friday, January 6, 2012 | 0

With the development of utilization review and defendant’s inability to challenge medical treatment through Labor Code §4062 based on the decision in State Comp. Ins. Fund v. WCAB (Sandhagen) 44 Cal. 4th 230, parties are turning with ever- increasing frequency to requesting a panel of qualified medical examiners to resolve their disputes. In order to reduce the amount of litigation over panel requests and proper panel issuance, the parties need to follow the applicable labor code sections, regulations and case law closely to ensure a timely and admissible report. In addition, employers and claims administrators need to take strategic advantage of both the statutory principles and the loopholes to those principles to further their position in a given case.

The first step is to confirm whether either party has the legal right to request a panel. Under Labor Code §4062(a), if an injured employee is represented by an attorney, the parties have 20 days to object to a medical determination by the treating physician concerning any medical issue not covered by sections 4060 or 4061 and not subject to the provisions of utilization review under section 4610. Labor Code §4062.2(b) specifies how to go about making that objection and states, in part: “Either party may commence the selection process for an agreed medical evaluator by making a written request naming at least one proposed physician to be the evaluator. The parties shall seek agreement with the other party on the physician ... If no agreement is reached within 10 days of the first written proposal that names a proposed agreed medical evaluator . . . either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation. . .”

First, then, you need a valid objection pursuant to Labor Code §4062 and that objection must list the name of at least one potential AME. Second, as we are now well aware from the recently decided case of Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (en banc), both parties must wait 10 days from the date of that letter plus five calendar days pursuant to Code of Civ. Proc. §1013(a) before requesting the panel of QMEs by the process further noted in §4062.2. As noted above, the Medical Unit may still issue a panel upon receipt of QME Form 106 and the associated documentation, but failing to properly comply with this procedure will invalidate the panel and allow the other party to seek a replacement panel.

The Messele case sheds light upon the fact that there are specific procedural hurdles that must be cleared in order to avoid invalidating a panel and that, in the case of a panel request, form over substance may determine whether either party can escape from a panel perceived as negative for its side. For example, Labor Code §4062.2(c) specifies that “within 10 days of assignment of the panel by the administrative director, the parties shall confer and attempt to agree upon an agreed medical evaluator selected from the panel. If the parties have not agreed on a medical evaluator from the panel by the 10th day after assignment of the panel, each party may then strike one name from the panel ...”

How many times have you received a panel and immediately received a strike from applicant’s attorney, without waiting 10 days after assignment of the panel? While we don’t have case law to confirm the penalty for an early strike, we can deduce that the strike was invalid and, therefore, the stricken physician is, technically, still a possible candidate for the panel QME examination.

That section of the Code goes on to state “If a party fails to exercise the right to strike a name from the panel within three working days of gaining the right to do so, the other party may select any physician who remains on the panel to serve as the medical evaluator.” This sentence only serves to confirm that a party must wait until it gains the right to strike before doing so. Therefore, if your opposition strikes a name prior to gaining the right to do so (i.e. 10 days after assignment of the panel) and does not strike (or re-strike) within the three calendar days following that right, you gain the right to schedule an examination with any physician remaining on that panel – including the one that was improperly struck by applicant’s attorney.

The above are just a few of the procedural avenues for obtaining the panel QME of your choice. It is helpful to review 8 CCR §30, et seq. For example, did you know that CCR §31.5(a)(2) allows for a replacement QME to a panel if a QME on the panel issued cannot schedule an examination for the employee within 60 days of the initial request for an appointment? Therefore, if you have gained the right to schedule the appointment and do not have any defense-oriented physicians on the panel you have received, a QME who cannot provide an appointment within 60 days paves the way for you to request a replacement panel.

Did you know that 8 CCR §34 governs cancellation of appointments and the requirement of an appointment notification form by the QME? If your QME does not send that form within 5 business days of the date the appointment was made, you are entitled to a replacement panel QME. And what if your panel QME reschedules the appointment because he or she didn’t get the records prior to the evaluation or “soon enough” in his or her opinion to evaluate the claimant? Section 34 governs cancellation timeframes and §34(g) specifies that “failure to receive relevant medical records, as provided in section 35 ... and section 4062.3 ... prior to a scheduled appointment shall not constitute good cause under this section for the evaluator to cancel the appointment” (emphasis added). Again, you are entitled to a replacement panel.

Certainly, to prevent a claim of laches or unclean hands in asserting your defenses to any given panel, you want to ensure that your objections are timely and you aren’t simply awaiting review of the report before moving forward with your remedies. However, in following the rule of “form over substance” that seems to be enumerated in the Messele decision, the lesson here is to use the Code to your strategic advantage when faced with a less-than-desirable panel of QMEs. In addition, to preserve a beneficial panel, it is important to follow the rules and ensure that your selected QME does, as well.

WorkCompCentral subscribers may read the Messele decision by clicking on the case title in the sidebar.

Kimberly Dyess is branch managing attorney for the San Diego office of Grancell, Lebovitz, Stander, Reubens and Thomas. This column was reprinted with permission from the firm's quarterly newsletter.