California: Keys to Selecting the Appropriate Medical Evaluator

April 02, 2018 (7 min read)

There is a great deal of uncertainty these days concerning what constitutes an appropriate request to replacement a Panel of Qualified Medical Evaluators (PQMEs) from the Department of Industrial Relations Medical Unit. When the initial PQME selected is deemed by one or both of the parties to be inappropriate in some way, what do you do? Below is a set of recent Noteworthy Panel Decisions (NPDs) discussing this issue and providing guidance to determine under what specific conditions it might be appropriate to request a replacement PQME under the regulation, 8 Cal. Code Reg. § 31.5.

I. Racial Bias as a Condition for Requesting a Replacement PQME

Labor Code § 4610.6(h)(4) provides that an IMR decision may be set aside when “the determination was the result of bias on the basis of race, national origin, ethic group identification, religion, age, sex, sexual orientation, color or disability.”

Regulation 8 Cal. Code Reg. § 31.5 sets forth sixteen circumstances which enable a party to request a replacement PQME. However, none of these sixteen circumstances include racial bias as a condition for requesting a replacement PQME. So, what happens if there is an indication that the PQME’s determination was as a result of racial bias?

This question was addressed in the recent NPD of Beecham v. Swift Transportation Services, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 555. In that case, the applicant, Timothy Beecham, a driver loader/unloader, had filed two specific industrial injuries to his low back on 6/29/2015 and a cumulative trauma claim to his low back ending on 6/29/2015.

When the applicant attorney took the deposition of Dr. Rosalind Hsia, the neurological PQME in this case, he asked her to describe the applicant, to which she responded as follows:

“I believe that he was a person of color. He was of medium height, not much taller than me. I should say he was short for a male individual. He was slightly overweight. And because I presumed him to have—I'm going to use a term that dates me—Negro blood, I felt that he—his muscle definition were abnormally low, especially considering the fact that he had not that long ago stopped working and was still engaged in physical activity.” (Id. at pp. 17:18–18:1.)

The WCAB affirmed the WCJ’s decision to grant applicant’s request and ordered the initial PQME be replaced by a PQME in neurology due to racial and ethnic comments as explained below:

“Based on her testimony, Dr. Hsia appears to have based her assessment of applicant's physical condition on his ethnic or racial makeup. By her own words, Dr. Hsia presumed that applicant ‘ha[d] … Negro blood,’ and based on that, she felt that his muscle definition, tone, and strength were abnormally low. The unavoidable implication here is that Dr. Hsia felt that these markers were abnormally low for a person with ‘Negro blood.’ It was inappropriate for Dr. Hsia to draw medical conclusions based on comparing applicant's muscle definition to the general population of individuals who share his ethnic or racial makeup; it indicates that Dr. Hsia relied on stereotypes regarding members of applicant's ethnic or racial group in evaluating and diagnosing applicant.” (Boldface in original.)

Therefore, the WCAB affirmed the WCJ's decision to strike Dr. Hsia's PQME report and to order a new panel of Qualified Medical Evaluators in neurology.

II. Violation of Reporting and Deposition Timeframes

With regard to the regulation 8 Cal. Code Reg. § 31.5 and the sixteen circumstances which qualify for requesting that a PQME be replaced, it seems that the most common circumstance is the violation of one of the mandatory deadlines for PQMEs.

In the NPD of Corrado v. Aquafine Corporation, 2016 Cal. Wrk. Comp. P.D. LEXIS 318, the WCAB affirmed that Labor Code § 4062.5 mandates that a replacement PQME be issued when the initial medical-legal report is untimely. This would be 30 days after the PQME’s evaluation of the injured worker per Labor Code § 139.2(j).

However, a replacement PQME is not similarly mandatory. Regulation 8 Cal. Code Reg. § 38(i) provides that supplemental QME reports must issue within 60 days from “the date of a written or electronically transmitted request….” Failure to issue a PQME report within that time frame may result in an Order for a replacement PQME, but it is within the WCJ’s discretion. This case sets forth the following criteria the WCJ should consider in these cases as to whether or not a replacement PQME should be ordered:

1. The length of delay caused by the late report.

2. The amount of prejudice caused by the delay in issuing the supplemental report versus the amount of prejudice caused by restarting the QME process.

3. What efforts, if any, have been made to remedy the late reporting?

4. Case specific factual reasons that justify replacing or keeping the current QME, including whether a party may have waived its objection.

5. The constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character.” (Cal. Const., art. XIV, § 4.)

See also Lewis v. LA Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 418 (WCAB overruled the WCJ’s Order for a replacement PQME, and returned to the trial level to evaluate all of the Corrado factors listed above.)

III. Inappropriate Specialty

It is not uncommon for parties to present at trial with the sole issue being which QME specialty is the most appropriate to evaluate the condition of a particular injured worker. Often such a determination is requested based on the perception that the initial QME specialty selected may favor one side over the other. The “unfavored” party thereby petitions to have that initial QME specialty replaced with a specialty they deem would provide a more favorable evaluation for their client. The process to request this type of replacement “specialty” is set forth in 8 Cal. Code Reg. § 31.1 and 8 Cal. Code Reg. § 31.5(a)(10).

If a dispute exists over the appropriate medical specialty of the PQME, the parties must first request an “expert opinion” from the Medical Unit. (See 8 Cal. Code Reg. § 31.1(b).) Once the Medical Unit has weighed it, either party may appeal that determination with a workers’ compensation judge (WCJ). (See 8 Cal. Code Reg. § 31.1(b).)

In the NPD of Ragan v. Union Bank, 2018 Cal. Wrk. Comp. P.D. LEXIS 38, applicant injured her right knee in a slip and fall incident at work as a customer service representative on 5/18/2015. Several months later, on 12/20/2016, applicant properly requested a QME panel in the chiropractic specialty to weigh in on a temporary disability (TD) dispute. Thereafter, QME Panel # 7088864 in the specialty of chiropractic was issued.

On 2/14/2017, Defendants objected to the chiropractic QME Panel and requested a panel in orthopedic surgery. In their letter to the Medical Unit, they noted that an orthopedic surgeon had recommended right knee arthroscopy for applicant. They forgot to mention that Defendant’s UR program had denied the surgery. Nevertheless, the Medical Unit issued a replacement panel # 2074217 in orthopedic surgery on 4/26/2017.

Applicant objected to the use of the replacement QME panel in orthopedic surgery, arguing that the Medical Unit was never told that the knee surgery had been denied, and therefore their determination can not be based on substantial medical evidence. The WCJ rejected applicant’s position, and instead found the orthopedic panel to be appropriate, by explaining:

“…applicant argued the disputed issue of temporary disability merely requires the Panel QME to evaluate applicant's ability to return to work or determine work restriction, which a chiropractor would be capable of performing. However, a temporary disability dispute also includes a determination as to whether the injured worker's condition has reached Maximum Medical Improvement or whether there are additional diagnostic and/or treatment modalities that might lead to further improvement. The Medical Director determined a supported diagnosis for applicant's chronic pain has been elusive and a chiropractic QME would not be medically appropriate to evaluate and provide accurate and supported responses to the disputed medical issues.”

The WCJ’s decision was affirmed by the WCAB.

IV. Conclusion

The selection and possible replacement of the QME plays a key role in the successful litigation of a workers’ compensation case. The rules for maneuvering through this process are complex and cluttered with gotchas. Therefore it would be prudent for all practitioners to carefully review all case law, regulations and Labor Code sections on this topic to ensure you are providing your client with the best options possible.