23 Apr 2024

California: Procedure for Obtaining a QME Panel in a Different Specialty in a Disputed Case

Board Panel Opinion Provides a Succinct Explanation

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

The process for determining medical issues in a workers’ compensation claim sometimes seems unduly complex and confusing. Labor Code sections 4060-4068 establish how medical issues are determined, and the procedures vary depending on such factors as whether the claimed injury or injuries are accepted as compensable and whether the applicant is represented by counsel. Those laws are implemented by a series of regulations. Rules pertaining to Qualified Medical Evaluators (QME) are covered by sections 10 through 65, Cal. Code of Regs., title 8. There are similar rules that define and explain the duties of the primary treating physician (PTP). For example, Rule 9785 details the reporting duties of the PTP. That rule, alone, covers nearly three full pages in the 2024 edition of Workers’ Compensation Laws of California (LexisNexis). Given the complexity and (often) verbosity of the various statutes and rules involved, it is no wonder that confusion persists over the appropriate mechanism to resolve disputes concerning the determination of medical issues. A recent Appeals Board panel opinion (Salcido v. Waste Management Collection and Recycling, 2024 Cal. Wrk. Comp. P.D. LEXIS 63, provides clarity on the procedure to obtain a secondary QME panel in a different specialty in a denied injury case.

The Facts

Ramberto Salcido (applicant) claimed a cumulative industrial injury to both orthopedic and internal body parts/systems. Defendant denied applicant’s claim of injury in its entirety. Charles Glatstein, M.D., was selected as the QME. He evaluated applicant, issued three reports, and was deposed. Dr. Glatstein’s reports addressed applicant’s claims regarding his neck, low back, left shoulder and headaches.

In a report dated May 22, 2018, Dr. Glatstein noted that applicant had a 15-year history of high blood pressure and was under treatment (medication) by doctors at a Kaiser facility. Additionally, Dr. Glatstein reported that applicant had a five-year history of diabetes with treatment by medication.

The records of applicant’s PTP included a history of epigastric pain with hematemesis.

During the deposition of Dr. Glatstein, applicant’s counsel asked him to indicate whether it would be appropriate for applicant to be evaluated by an internal medicine or related specialist if applicant is claiming that his internal/cardiological complaints may have occurred because of his employment. Dr. Glatstein responded by stating that in his opinion such an evaluation would be warranted.

Applicant then requested a second QME panel in internal medicine/gastroenterology, which defendant opposed. Following a trial on the matter, the WCJ found that applicant was not entitled to an additional QME panel in internal medicine/gastroenterology. Applicant sought reconsideration of that decision.

The Panel’s Analysis

The unanimous panel wastes no time in jumping right to the heart of the matter: the proper procedures when a secondary QME in a different specialty is requested. It begins this discussion by first addressing the process for a QME panel in a different specialty when the claim of injury is accepted as industrial, and the compensability of an additional body part/system is alleged. Under those circumstances, the normal process is for the PTP to make a medical determination in accordance with Lab. Code, § 4062. The opinion references Rule 9785(d), which requires the PTP to provide opinions on all medical issues to determine the injured worker’s entitlement to compensation. If the additional body part/system is outside the scope of expertise of the PTP, the PTP should then refer the injured worker to a secondary PTP with the required expertise. The secondary PTP must make findings and report those to the PTP (see Rule 9785(e)(3)), who then must incorporate or comment upon those findings and opinions in a report (see Rule 9785(e)(4)). Either party may then object to the PTP’s report pursuant to Lab. Code, § 4062. If the parties are unable to agree on a QME, then either party may seek an order from a WCJ under Rule 31.7.

The panel then observes that this case is not an accepted claim. Rather, defendant has denied applicant’s claims of injury in their entirety. As such, it is a denied claim, and the rules applicable to an accepted claim of injury where the compensability of an additional body part/system is alleged, do not apply. The avenue of proceeding through the PTP to obtain the opinion of a secondary PTP is simply not available. However, the panel points out that Rule 31.7(b) authorizes the issuance of an additional QME panel on a good cause showing that a QME panel in a different specialty is needed. Next, the panel explains two different ways to show good cause consistent with Rule 31.7(b). One way is to obtain the opinion of the PTP, and then object under Lab. Code § 4062. Another way to demonstrate good cause is to ask the currently serving QME whether they are capable of commenting on all disputed medical issues in the case. The panel points out that this is precisely what applicant did during the deposition of QME Dr. Glatstein. In response to the question, Dr. Glatstein opined that a QME in a different specialty was appropriate. Since Dr. Glatstein was not able to render an expert opinion on all disputed medical issues in the case, there is good cause to order an additional panel.

The opinion also comments on a concern raised by defendant in its answer to applicant’s petition for reconsideration. In their answer, defendant points out that an applicant in a denied injury case could simply allege a body part without any medical evidence of industrial injury and be entitled to a QME in a different specialty. While conceding that possibility, the panel observes that in this case, applicant’s initial QME evaluation was obtained entirely on allegations of injury without any reporting from a PTP. The panel then states that allegations of injury to additional body parts/systems should be treated in the same manner since expeditious resolution of workers’ compensation claims is paramount and “[s]ufficient remedies exist to combat those rare cases where a litigant may request additional panels frivolously or in bad faith (§ 5813).” (Opinion, p. 5)

Why Is this Case Important?

Disputes over the need for additional QME panels are neither rare nor infrequent occurrences in the litigation of workers’ compensation claims. No doubt some of that litigation is sparked by the complexity of the statutes and their implementing rules. In a concise seven-page opinion, the Appeals Board panel provides a straightforward template that can be used to enable parties to resolve such a dispute themselves without the involvement of the WCAB. The first step involves a simple question: is the claim of injury an accepted claim of injury to one or more body parts/systems? If so, Lab. Code § 4062 explains the steps to obtain a QME if there is an objection to a medical determination by a treating physician. Next, if the claim of injury is accepted as compensable but there is a dispute as to the compensability of additional body parts/systems, the initial recourse is to seek the opinion of the PTP. If the disputed body part/system is beyond the expertise of the PTP, the PTP should refer the injured worker to a secondary physician with the appropriate expertise and then incorporate and comment upon the findings and opinions of the secondary physician in the PTP’s report. Then, if there is an objection to the PTP’s report, the parties should follow the procedures in Lab. Code § 4062 to obtain a QME panel. If there is a dispute as to the need for a secondary QME in a different specialty, the parties can petition the WCAB for an order pursuant to Rule 31.7(b).

But, where the claim of injury is not accepted as compensable and is denied in its entirety, the procedures to obtain an additional QME panel are different. The party claiming the need for an additional QME panel in a different specialty has the burden of demonstrating that good cause exists sufficient for a WCJ to order an additional QME panel. One way of demonstrating good cause is to establish that the disputed medical issue is beyond the expertise of the initial QME. This showing can be made by deposing the initial QME.

Finally, while it is possible that the injured worker in a denied injury claim may simply allege injury to an additional body part/system simply to obtain an additional QME panel, sanctions for frivolous and bad faith motives provide a meaningful remedy.

Reminder: Board panel decisions are not binding precedent.