California: Requirements for Requesting Additional QME Panels

In Martinez v. Santa Clarita Community College District, 2015 Cal. Wrk. Comp. P.D. LEXIS 2 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 2 (Lexis Advance), the WCAB denied the applicant’s petition for removal and affirmed the WCJ’s finding that the applicant, who worked as a custodian and alleged that he had incurred a cumulative injury to his back, circulatory system, psyche, nervous system, gastrointestinal system, and in the forms of hypertension and diabetes during period 6/24/2011 through 6/14/2012, was entitled to a panel qualified medical evaluation in orthopedics, but was not currently entitled to panel qualified medical evaluations in the specialties of psychiatry and internal medicine as applicant had requested.

[Publisher’s Note: Citations link to lexis.com. Bracketed cites link to Lexis Advance.]

The WCAB found that the applicant improperly requested all three QME panels at the same time, rather than completing an initial panel qualified medical evaluation pursuant to 8 Cal. Code Reg. § 31.7 [R 31.7],  before requesting the evaluations in the other specialties. Since the applicant prematurely requested additional panels in different specialties, he could not use Form 31.7 to request the other panels in other specialties as required under 8 Cal. Code Reg. § 31.7.

The WCAB further found that the applicant also failed to comply with the requirements of Labor Code § 4062 [LC 4062] by requesting psychiatric and internal medicine qualified medical evaluator panels without objecting to the medical findings regarding his  psychiatric and internal injury complaints prior to requesting panels in these specialties. Since the applicant was treating with an orthopedist at the time he requested the three panel qualified medical evaluations in different specialties and objected only to the orthopedic findings, it was appropriate to assign a QME panel only in orthopedics.

COMMENTARY:

In Martinez, applicant filed a cumulative injury through June 14, 2012. Defendant denied his claim of injury. Rule 30(d)(2) [R 30] provides that once the claims administrator has accepted an industrial injury to any body part, a request for a panel QME may only be filed based on a dispute arising under Labor Code § 4061 or 4062 [LC 4061, LC 4062].  The rule is silent on what the parties are supposed to do when dealing with a denied injury. The WCJ here, as did the panel of commissioners, found that applicant was required to go through Rule 31.7 and then through the process described by Labor Code § 4062. The practical implication from this is that in a denied injury, not only must the parties initially object to the treating physician’s opinion pursuant to Labor Code § 4061 or 4062, but before the second or third specialty is selected, the parties must meet the definition of “good cause” as set forth in Rule 31.7.

As Rule 30(d)(2) is silent on the procedures for a denied injury, the implication from this rule should be that the injured worker does not, in fact, have to go through the § 4062 before obtaining the initial panel or Rule 31.7 prior to obtaining panels in additional specialties. In fact, requiring the injured worker to go through these procedures in a denied liability case will lead to unnecessary delays as well as absurd results. If the applicant does not possess private health insurance, he may have no means by which to obtain a treating physician’s opinion that he can object to. More specifically related to Martinez, if the orthopedic physician he is treating with refuses to comment on the circulatory system, psyche, nervous system, gastrointestinal system, hypertension or diabetes, will the objection to the treating physician’s refusal to comment on these conditions constitute a valid objection?

The requirement that the applicant proceed through the § 4062 procedures before obtaining additional QME specialists is also contrary to the spirit behind Labor Code § 5402 [LC 5402]. This section requires defendants to deny liability for an injury within 90 days of the claim being filed. Why would the Legislature give a defendant a specific timeline to make a decision concerning liability and then, once defendant denies liability, subject an injured worker to months and possibly years of delays by requiring an injured worker to go through Labor Code § 4062 before he can obtain panels in additional specialties?

Read the Martinez noteworthy panel decision.

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