California: Should a Suspended QME Be Able to Write Admissible Medical-Legal Reports?

Recently, the Workers’ Compensation Appeals Board issued a decision in Gary McKinney v. United Parcel Service ADJ6679833 and ADJ8786254, 2014 Cal. Wrk. Comp. P.D. LEXIS --. McKinney was a driver/dockworker for United Parcel Service (UPS). He alleged an injury on August 8, 2008 to his psyche as well as his neck and back. The matter proceeded to trial and the Workers’ Compensation Administrative Law Judge (WCALJ) found that the psychiatric injury was compensable in light of the QME’s failure to appropriately address causation consistent with Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc decision). The WCALJ further found that the orthopedic injuries were not compensable relying on the orthopedic QME’s opinions.

Defendant filed a Petition for Reconsideration challenging the WCALJ’s determination in connection with the psyche injury. Applicant filed a Petition for Reconsideration and argued, for the first time on appeal, that the orthopedic QME, Dr. Jose Senador, had been suspended during the pendency of applicant’s case and that his reports should be deemed inadmissible in light of his suspension.

The McKinney decision, written by the newest WCAB commissioner, Katherine Zalewski, with two other commissioners concurring, first addressed the contention raised by defendant. The WCALJ’s concern that the psychiatric QME’s opinion on causation was not stated in terms of medical probability was discussed. It was found that the entire record must be considered and when considering that record, there was ample support for the finding that applicant’s psychiatric injury was substantially caused by a good faith, personnel action (Labor Code Section 3208.3(h)). Accordingly, the panel rescinded the WCALJ’s finding of industrial causation to the psyche and issued its own determination that applicant did not sustain injury arising out of and occurring in the course of employment to his psyche.

It was, however, in connection with applicant’s petition that the decision is most interesting. First, the panel noted that there had been five days of trial and that the issue of Dr. Senador’s suspension was not raised at any time prior to the Petition for Reconsideration. The panel further noted that applicant failed to set forth any reasons why the information could not have been discovered with reasonable diligence prior to the submission of the case (California Code of Regulations, title 8, section 10856).  The decision could have very easily stopped there and found that applicant’s contentions were untimely raised and could not be considered.

The decision, however, did not stop there. The panel stated that there is nothing in the regulations or Labor Code which indicates the reports of a QME are inadmissible during a suspension or probation of the QME’s license by the Medical Unit. The opinion cited Labor Code Section 139.2(m) and stated that there was no evidence that the physician had been suspended by the “relevant licensing board”, which, according to the decision, was the California Medical Board. Finally, the panel noted that “an online search of the records of the California Medical Board reveals that its only disciplinary action involving Dr. Senador at any time was a public reprimand on February 4, 2010, and that his license has not been suspended or revoked.”

California Code of Regulations, title 8, section 60 provides that the Administrative Director in his or her discretion may suspend or terminate a physician from the QME list. Section 60(e) essentially states that a report which has not been completed and served prior to the decision or conviction of the “relevant licensing board” shall be inadmissible. This section does not identify the specific action or conviction that must occur prior to the reports being deemed inadmissible.

Labor Code Section 139.2(m) states that the Administrative Director shall terminate from the list of QME’s any physician where licensure has been terminated “by the relevant licensing board” or who has been convicted of a misdemeanor or felony related to the conduct of his or her medical practice, or of a crime of moral turpitude. The AD shall suspend any physician who has been suspended or placed on probation by the “relevant licensing board”. Finally, this section provides that if a physician is suspended or terminated as a Qualified Medical Evaluator under this subdivision, a report not furnished to one or more of the parties prior to the date of conviction or action of the licensing board shall not be admissible before the WCAB.

Here, Dr. Senador was suspended independent of any suspension or probationary action taken by the California Medical Board. Indeed, as the commissioners noted in their decision, Dr. Senador was publicly reprimanded on February 4, 2010 by the California Medical Board. Subsequently, his QME license was suspended by the Administrative Director on July 15, 2000. The Division of Workers’ Compensation Website confirms that Dr. Senador (License No. A-30062) was suspended from 7/15/2010 through 10/14/2010, with probation 10/15/2010 through 4/14/2011. Unfortunately, the website does not provide interested parties with the charges that supported the suspension.

Certainly, if the California Medical Board suspends a physician who also is a QME, that QME’s reports during the period of suspension are inadmissible. However, contrary to this panel decision, Section 139.2(m) does not state that a report of a QME is inadmissible only if that physician is suspended or placed on probation by the relevant licensing board. It says, if a physician is suspended or terminated as a Qualified Medical Evaluator under this subdivision, a report not furnished to one or more of the parties prior to the date of conviction or action of the licensing board shall not be admissible before the WCAB.

California Code of Regulations, title 8, section 60(e) and Labor Code section 139.2(m), however, are simply silent on how a physician’s suspension as a QME affects the admissibility of any reports issued during the period of his or her QME suspension. The point of this article is to suggest that the commissioners’ reliance on Section 139.2(m) in McKinney was misplaced. A physician can be suspended as a QME for a multitude of reasons. Regardless of the particular reason for the suspension, as soon as the Administrative Director determines that the QME’s suspension is a necessary punishment, it defies logic to then argue that medical-legal reports that the physician writes during that suspension should then be deemed admissible. Such a finding would seem to defy the entire concept of a suspension.

In conclusion, ensuring that the working people of this State have access to a qualified and quality medical-legal evaluation under the QME process should be a top priority of the Workers’ Compensation System. When suspended physicians are allowed to write reports that are admissible and can serve as a basis for determining a worker's eligibility for benefits, it brings the integrity of the entire QME process into question.

Read the McKinney noteworthy panel decision.

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