California: The Latest on QME Panel Medical Specialty Disputes

The Roles and Authority of the Medical Unit and the WCAB

Qualified Medical Evaluator (QME) panel specialty disputes have been a source of enormous frustration to practitioners. It is not uncommon for parties to wait prolonged periods of time for the Medical Unit, through its Medical Director, to issue a decision on a specialty dispute, which may delay ultimate case resolution. Similarly, many practitioners have expressed exasperation with the lack of clarity as to the definitive nature of a QME panel specialty determination issued by the Medical Director. Two recent decisions by Appeals Board panels will help ameliorate these frustrations. The first is Porcello v. State of California Department of Corrections & Rehabilitation, 2020 Cal. Wrk. Comp. P.D. LEXIS 9]. The panel’s unanimous decision recognizes the adjudicatory authority of a workers’ compensation administrative law judge (WCJ) to determine QME panel specialty disputes prior to or instead of the Medical Director. Moreover, both the majority and concurring opinions specifically disagree with the holding in Portner v. Costco, 2016 Cal. Wrk. Comp. P.D. LEXIS 499, to the extent that case indicates otherwise. The second panel decision, Lopez-Contreras v. Ranstad North America, 2020 Cal. Wrk. Comp. P.D. LEXIS 12, concludes that the Medical Director’s QME panel specialty determination is not dispositive and may be disregarded if it is not substantial evidence. No doubt both applicant and defense counsels will welcome these non-binding, but persuasive opinions, because they provide clarity as to the respective roles of the Medical Director and a WCJ vis-à-vis panel specialty disputes and offer a pragmatic approach to alleviate delay experienced by so many in receiving a panel specialty determination from the Medical Director.

It goes without saying that QMEs play a pivotal role in nearly every workers’ compensation claim. They examine injured workers, review medical records and reports, and write medical legal evaluations that help determine such matters as causation of an injury or extent of impairment. Labor Code sections 4062.1 and 4062.2 provide the procedure to obtain a QME panel. In relevant part, they state that the party submitting the panel request shall designate the specialty and the Medical Director is required to utilize the specialty indicated by the requestor to generate the QME panel. (Cal. Code Regs., tit. 8, § 30.5.) The rules also provide a mechanism to request a replacement QME panel in a different specialty. AD Rule 31.5(a)(10), authorizes the Medical Director, upon written request, to issue a replacement panel in a different specialty upon determination that the previously designated specialty is medically or otherwise inappropriate for the disputed medical issue(s). Further, AD Rule 31.1(b) gives either party the right to appeal the Medical Director’s decision as to the appropriateness of the QME specialty to a WCJ.

Although the AD’s rules surely anticipate a streamlined process to resolve QME specialty disputes, anecdotal information suggests that parties often wait extended periods of time for a Medical Unit determination. Such delays, of course, have led to efforts to bring a QME specialty dispute to the WCAB in the first instance. In an earlier case, Portner v. Costco, supra, the parties submitted simultaneous requests for QME panels in different specialties, and two panels were issued in different specialties. Rather than present the issue of which panel was the appropriate specialty to the Medical Director as required by AD Rule 31.5(a)(10), the dispute was brought to the Appeals Board and a WCJ determined that orthopedic medicine was the appropriate specialty. Applicant then sought removal and an Appeals Board panel granted her request and rescinded the WCJ’s order. The panel decision held that the correct process for determination of the appropriate QME panel specialty was not followed, and that the WCJ should have directed the parties to submit the specialty dispute to the Medical Director in the first instance. (Portner, supra, 2016 Cal. Wrk. Comp. P.D. LEXIS, pp. 11-13.) Portner has remained persuasive, albeit non-binding authority, ever since.

Portner’s persuasive affect, however, is now in question as a result of the recent panel decision in Porcello, supra. In Porcello, the injured worker sustained a specific injury to his right shoulder as well as a cumulative injury to his right shoulder and right thumb. He also had a prior specific injury that was not at issue. Applicant’s attorney requested two QME panels in the specialty of chiropractic. Defendant objected on the basis that the parties had previously agreed to have the QME on applicant’s prior claim address his two other claims. Without waving its objection, defendant made a strike from each panel. Defendant then sent two letters to the Medical Unit, objecting to the requested QME specialty in each claim. As regards the CT claim, defendant claimed that pain management was the appropriate specialty because surgery was possible. Defendant next claimed that physical medicine and rehabilitation is the most appropriate specialty to address the other claim. Applicant responded with a letter to the Medical Unit, calling defendant’s requests untimely and asserting that chiropractic is the appropriate specialty.

Without a determination by the Medical Director, an expedited hearing was requested and held. The minutes of the hearing indicate that no response from the Medical Director to defendant’s requests for replacement panels had yet issued at the time of the hearing. The WCJ issued a Findings and Order (F&O) in which he found a cumulative industrial injury to applicant’s right thumb and shoulder. The F&O also determined that there was no agreement to use a prior QME as the QME to evaluate applicant’s two other claims, but forbid applicant from proceeding with evaluations by the two QMEs pending a determination by the Medical Director on defendant’s requests for replacement QME panels in different specialties. The WCJ further held that it would be premature for him to decide the QME panel specialty dispute since the Medical Director had not yet issued his determinations. He ordered the parties to wait for the Medical Director’s determinations.

Defendant sought reconsideration or, in the alternative, removal of the decision. The Appeals Board panel treated the petition as one seeking reconsideration since the F&O made a finding of injury but applied the removal standard because defendant only challenged a finding regarding the status of the claimed agreement to use the prior QME. (Note the issue of whether there was an agreement to use the prior QME is not germane to the QME specialty dispute.) Although the panel found defendant failed to demonstrate a basis for removal and affirmed the WCJ’s decision with regard to an alleged QME agreement, it disagreed with the WCJ’s finding that applicant cannot proceed with the two panel QME evaluations pending a determination from the Medical Director on the specialty dispute.

The panel’s decision is instructive. It recognizes the exclusive original jurisdiction of the Appeals Board over all workers’ compensation claims, including any right or liability arising out of or incidental to such claim, as set forth in California Constitution, Article XIV, section 4 and Labor Code section 5300. Further, it acknowledges that the Appeals Board is vested with full power, authority and jurisdiction to try and determine all workers’ compensation claims, and that workers’ compensation proceedings shall be initiated before the Appeals Board and not elsewhere. (Lab. Code, §§ 5300, 5301.) The Appeals Board’s authority includes the right to delegate to its WCJs the authority to conduct hearings, ascertain facts and make orders, decisions and awards, including interlocutory and interim orders, such as orders concerning discovery disputes. (Lab. Code, §§ 5309, 5310; Cal. Code Regs., tit. 8, § 10330; Allison v. Workers’ Comp. Appeals Bd. (1999) 72 Cal. App. 4th 654 [64 Cal. Comp. Cases 624; Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Bd. en banc).) Noting that the AD’s rules allow a party to appeal the Medical Director’s determination regarding QME specialty to the Appeals Board, it states, “…nothing in the Labor Code precludes a party from submitting a panel dispute to a WCJ prior to or instead of submitting the dispute to the Medical Director, and a WCJ may address this dispute pursuant to the adjudicatory authority outlined in the discussion above.” (Porcello, supra) Moreover, in a separate concurring opinion, the Chair states that she has reconsidered the decision in Portner; has reached the conclusion that it is inconsistent with the authority specifically vested in the Appeals Board by Labor Code sections 5300, 5301, 5310; is now in disagreement with Portner, and adopts that rationale set forth in the Porcello opinion.

In Lopez-Contreras, the Appeals Board was not presented with the specific question of the authority of a WCJ to determine a QME panel specialty dispute in the first instance. However, that conclusion is implicit in the panel’s discussion of the Appeals Board’s authority and exclusive jurisdiction. What is significant about Lopez-Contreras is its explicit holding that the Medical Director’s specialty determination is not dispositive and may be disregarded if it is not substantiate evidence because the Appeals Board has the ultimate authority to determine the appropriate specialty. Gloria Lopez-Contreras (applicant) alleged industrial injury to multiple body parts. While unrepresented, she requested a QME panel in the specialty of chiropractic, and a chiropractic panel issued. Defendant requested a replacement panel in the specialty of orthopedic medicine. The Medical Director granted defendant’s request and issued a replacement panel in the specialty of orthopedic surgery with an explanation that because there were no findings that pointed to the presence of an objective injury, an orthopedist has the education and experience that is appropriate to evaluate applicant’s complaints and a chiropractor does not. Apparently, applicant was not evaluated by an orthopedic QME.

Subsequently, applicant became represented by an attorney. Her attorney requested and obtained a QME panel in the specialty of chiropractic. Defendant objected and requested that a replacement panel in orthopedic surgery issue in line with the Medical Director’s prior determination. The Medical Director then issued a replacement panel in the specialty of orthopedic surgery. The dispute proceeded to an expedited hearing to review the Medical Director’s determination. The WCJ found that applicant sustained an industrial injury to her right wrist and right knee. He also determined that chiropractic is not an inappropriate specialty and ordered the parties to utilize the chiropractic QME panel.

Defendant sought removal of the WCJ’s order to use the chiropractic QME panel. The Appeals Board panel affirmed the WCJ’s Findings and Order. The opinion discusses the Appeals Board’s exclusive, original jurisdiction over all workers’ compensation claims and any right or liability arising out or incidental to, as well as its power, authority and jurisdiction to try and determine all workers’ compensation claims. (Lab. Code, §§ 5300, 5301.) It also clarifies the authority of the Medical Director to issue QME panels and makes clear that the Medical Director does not have the authority to address causation of an alleged industrial injury because determination of that issues falls squarely within the exclusive jurisdiction of the Appeals Board. Further, it acknowledges the authority of WCJs to address discovery disputes arising in workers’ compensation claims, which includes determining the appropriate QME panel specialty to address the disputed medical issue in a claim. It explains that in a case like Lopez-Contreras where the evidentiary record includes a QME panel specialty determination from the Medical Director, that determination will be considered. However, because the Appeals Board has the ultimate authority to determine the appropriate specialty, a determination from the Medical Director is not dispositive and may be disregarded if it is not supported by substantial evidence. In its analysis of the Medical Director’s conclusion that orthopedic surgery is the appropriate specialty, the panel points out that his decision was premised on an orthopedist’s education and experience without any explanation as to why a chiropractor’s education and experience would be insufficient to address the disputed medical issues. After all, the decision explains, chiropractic QMEs are required to complete training and be certified and are held to the same standards as other physicians that act as QMEs. The training they receive includes workers’ compensation evaluation and the proper use of the AMA Guides. The panel then concludes that in the absence of an adequate explanation from the Medical Director regarding the specialty dispute, the WCJ was not obligated to follow the Medical Directors determination and properly concluded that chiropractic is not an inappropriate specialty to address the disputed issues in the case.

These two panel decisions portend a rosier future for QME panel specialty disputes. Foremost, they clarify the respective roles of a WCJ and the Medical Director, and they provide guidance to ensure that determinations are grounded on substantial evidence. And they offer the practical solution of presenting a QME panel specialty dispute to a WCJ in the first instance, especially when that course will provide a more expeditious resolution of the dispute.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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