California: Intervention of WCJ When PQME Process Fails

It is difficult to come up with a more controversial not to mention hotly litigated topic in California’s workers’ compensation system than the Panel Qualified Medical Evaluation (PQME) process. Though there is little question that the old “battling QME” process that pre-dated the current PQME process had its share of problems, the difficulties encountered while dealing with the Medical Unit or the hyper-technical rules applicable to the QME process can oftentimes result in multiple replacement PQME’s being assigned in an individual case.

Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) upheld a Workers’ Compensation Administrative Law Judge (WCALJ) who determined that the record had not been sufficiently developed on the question of whether an industrial injury had, in fact, occurred (Foster v. Express Employment Professionals, 2018 Cal. Wrk. Comp. P.D. LEXIS --). Instead of ordering the parties to proceed through the PQME process, the WCALJ instead invoked Labor Code Section 5701. On his own accord, the WCALJ appointed a “regular physician” so the case could move forward. In fact, the WCALJ went so far as contacting the office of the doctor, the one whom he was appointing, to determine that the physician would likely be able to see the injured worker far more quickly than if the injured worker were to go through the PQME process.

Possibly the most interesting aspect about Foster is the defendant’s opposition to the appointment of a “regular physician”. Defendant instead argued that it had a right to proceed through the PQME process. In response, the WCALJ pointed out that five panel requests had already been submitted to the Medical Unit over the course of seven months and despite these requests, the Medical Unit had still not issued a panel of QME’s for the case. Obviously, the WCALJ did not believe the PQME process was going to be an effective mechanism for obtaining the necessary medical-legal evaluation.

That is, from a WCALJ’s perspective, sometimes the most difficult aspect of dealing with these PQME disputes is: what can the WCALJ do when confronted with a case where either the Medical Unit has not been responsive as in Foster, or where multiple PQME’s have already been replaced on the case and the parties have yet another PQME replacement issue? To put it another way, must the WCALJ strictly follow the applicable laws even when those laws are leading to absurd results? Cases like Foster inform us that the WCALJ can, at some point in the proceedings, legitimately order a “regular physician” so as move the case toward an appropriate resolution.

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