QME Panel Case from WCAB

Saturday, June 30, 2007 | 0

By Jake Jacobsmeyer

The WCAB has issued a "significant panel decision" on June 14, 2007 addressing a thorny issue involving medical-legal evaluations in cases where injured workers were previously unrepresented and become represented.

In Romero v. Costco Wholesale, OAK 328271, the applicant, while unrepresented, became involved in a dispute over medical treatment. Pursuant to Labor Code Section 4610 defendant requested a QME panel under Labor Code Section 4062 and 4062.1 for an unrepresented injured worker. The DWC issued a panel pursuant to the request. While the request for panel was pending and prior to the panel actually issuing from the DWC applicant became represented by counsel. The parties attempted unsuccessfully to agree on an AME. Defendant then scheduled the applicant to be seen by a QME selected from the panel.

Applicant objected to the existing panel and asserted that he was entitled to a new QME panel with a specialty selected by his counsel. Applicant had in the interim changed treating physicians to a chiropractor and requested a chiropractor panel. The DWC refused to issue a new panel upon request by counsel for applicant.

Applicant petitioned the WCAB for an order compelling the DWC to issue a new panel composed of chiropractors rather than orthopedic surgeons to resolve the parties' medical treatment dispute. The trial judge agreed with applicant that as the unrepresented applicant QME process had not been completed the applicant was entitled to now proceed under Labor Code Section 4062.2 as a represented party and complete the AME/QME process using that track.

Defendant petitioned for removal requesting the Board to compel applicant to see the physician selected from the initial QME panel. In a relatively short opinion with almost no analysis the WCAB agreed with the trial judge concluding as follows:

"... however, because applicant had not attended and participated in the examination by the panel QME when she changed from being not represented by an attorney to being represented, she had not "received" a comprehensive medical-legal evaluation pursuant to Section 4062.1 and is, therefore, not precluded from requesting a new QME panel pursuant to Section 4062.2."

It would not be surprising to see the defendant take this issue up further. A Significant Panel Decision[1] is not binding on trial judges. While it may be persuasive authority and would allow judges to rely upon it in order to issue decisions if they chose a trial judge could also disagree with this decision (unlike an en banc decision which is binding on trial judges as well as the WCAB). Further a new WCAB panel could issue a different decision.

Presumably the converse also would hold true. If an applicant had requested a panel and prior to the panel evaluation having occurred obtained representation by counsel the defendant should have the opportunity to abort the panel process should they choose and immediately commence the AME/QME process under Labor Code Section 4062.2 following the represented track medical litigation process.

Traditionally the DWC has refused to issue second panels in most cases where a second panel has been requested by one or more parties holding to its interpretation of Labor Code Section 4061 and 4062 that in injured worker, who had been issued a panel only received one panel. It is unclear whether the DWC will change their policy as a result of this decision particularly since it is not binding on trial judges or the Board.

A copy of this decision can be reviewed on the DWC web site by clicking on the link above.

Odds and Ends:

An additional item of interest. The Court of Appeal in the First Appellate District yesterday issued an unpublished decision in the case of Zenith Insurance Company v. WCAB (Azizi) addressing the old schedule versus new schedule arguments once again. This case was unpublished in all likelihood due to the fact that it follows the same rationale as the recent decision of the same district but a different panel in Costco v. WCAB reported on several weeks ago. In this case the Court of Appeals also held that the commencement of temporary disability benefits prior to 1/1/04 did not trigger the use of the old rating schedule as had been determined by the WCAB relying upon the original Pendergrass v. Dugan Plumbing and State Fund case. The original case was, of course, reversed by the subsequent decision on reconsideration in the same case and of the same name. The applicant also argued in this case the same rationale rejected by the WCAB in its en banc decision in Aldi v. Carr,McClellan, Ingersoll, Thompson and Horn. 71 CCC at 783. The Court of Appeals soundly rejected that argument also.

There are still approximately nine or more cases pending at different appellate districts throughout the State of California on some aspect of the application of Labor Code Section 4660 and the old versus new permanent disability rating schedule. There will clearly be more to report on this issue in the coming months.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain, Claffey & Nix and can be reached at jakejacobsmeyer@shawlaw.org.

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