California QME Selection Process: Timing and Documentation Requirements

The WCAB has recently issued two noteworthy panel decisions on the QME selection process.

In Murray v. County of Monterey, 2015 Cal. Wrk. Comp. P.D. LEXIS 304 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 304 (Lexis Advance), the WCAB provided guidance on the contentious QME selection process by interpreting a change in the Labor Code brought about by SB 863 regarding the timely filing of a request for a QME panel.

The WCAB granted removal and rescinded the WCJ’s finding that the defendant’s qualified medical evaluator panel request was untimely and, therefore, as stipulated by the parties, the appropriate qualified medical evaluator panel specialty was physical medicine and rehabilitation. Instead, the WCAB found that the defendant’s qualified medical evaluator request was timely and appropriate, and that the qualified medical evaluator specialty to evaluate the applicant sheriff’s 9/19/2008 alleged orthopedic injury was orthopedic surgery.

(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)

Specifically, the WCAB found that Labor Code § 4062.2 [LC 4062.2], as amended by SB 863, allows a request for a qualified medical evaluator panel to be made “[n]o earlier than the first working day that is at least 10 days after the mailing” of the request for an evaluation under Labor Code § 4060 [LC 4060] or an objection to treating the physician, or on the 15th day if the request is mailed. The WCAB also found that the defendant in this case mailed its claim denial letter to the applicant on 8/1/2014, and timely sent its panel request on 8/18/2014, which was the 15th business day (excluding Saturday and Sunday) after sending its denial. Accordingly, the WCJ’s reliance on the decision in Messelle v. Pitco Food, Inc. (2011) 76 Cal. Comp. Cases 956 [76 CCC 956] (Appeals Board en banc opinion) [which held that a 10-day time period for agreeing on an agreed medical evaluator excluded the first day (the date of the written proposal) and included the last day (i.e., the 10th day to agree on an agreed medical examiner)], to support the finding that the applicant’s request was sent one day early was misplaced because Messelle involved an earlier version of Labor Code § 4062.2, and that, the rationale in Messelle did not therefore apply to the current the version of Labor Code § 4062.2.

In Natividad v. Sherbourne Properties, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 305 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 305 (Lexis Advance), the WCAB provided some additional clarification on the QME process by balancing the applicant’s failure to satisfy documentation requirements against a defendant’s dilatory conduct in objecting to the applicant’s panel request.

The WCAB affirmed a WCJ’s finding that a panel of chiropractic qualified medical evaluators was valid, even though the applicant’s request for a chiropractic panel was defective. It was uncontroverted that the applicant had failed to identify a primary treating physician or that physician’s specialty of family/occupational medicine. It was also undisputed that the applicant had failed to submit any relevant documentation supporting the designation of chiropractors as required under 8 Cal. Code Reg. § 31.1(b) [R 31.1]. Nevertheless, the WCAB pointed to the delay in various aspects of the defendant’s conduct, specifically highlighting its failure to object to the applicant’s panel request until four months after the chiropractic panel was issued.  

The WCAB accordingly concluded that the defendant’s objection was untimely and that the defendant had failed to demonstrate that the WCJ’s decision caused substantial prejudice or irreparable harm and that reconsideration would not be an adequate remedy if the defendant was aggrieved by any final order arising from the designation of a chiropractic panel qualified medical evaluator.

Commentary:

There can be no question that the old “battling QME” process that pre-dated Senate Bill 899 in 2004 had many problems. However, it is equally true, if not more so, that the changes to the QME process that occurred in 2004 and those further changes that occurred in 2013 as part of Senate Bill 863 have resulted in a complicated, unwieldy and ineffective process for obtaining medical-legal evaluations in workers’ compensation cases.

These cases highlight the significant amount of litigation that continues to exist in connection with selecting and obtaining a QME. Although these cases dealt with identifying the appropriate medical specialty of the QME, there are many different types of conflicts that continue to exist over the selection of the QME. In fact, once a QME is appropriately selected in a case that is oftentimes just the beginning of the conflict. The parties then have to navigate how to schedule the evaluation with the QME, get information to the QME, and communicate with the QME. There are occasions where an attorney will request a supplemental report for no other purpose than to calendar the date of the request in hopes that the doctor will respond in more than 60 days so that the attorney can then petition to strike the doctor from the case.

The problem does not only lie in the complicated and poorly crafted rules that govern the QME process. The problem is exacerbated by the poor report writing and “mill mentality” that affects so many of QME reports. In the days where the parties used their own experts, if that expert did not write a thorough and credible report, that party could choose not to go back to that doctor for any further reports. Now, if a doctor writes a deficient report, the solution is to do whatever the aggrieved party can do to get the report thrown out. Once that occurs, then the parties are left with either starting the QME process all over again or go to an AME. In many cases, the parties have to go through the QME process more than once before they are able to obtain an admissible and/or substantial report.

There must be something done to simplify the process for obtaining a thorough and credible medical-legal report. Whether the solution is to return to the “battling QME” process that we used to have or whether it is to reform the current process is hard to say. What is not hard to say is that the current process for obtaining a medical-legal evaluation in a workers’ compensation case does not work.

Read the Murray noteworthy panel decision.

Read the Natividad noteworthy panel decision.

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