Sept 20th, 2023
Sure Log
Attorney of Counsel, Michael Sullivan & Associates, LLP
Labor Code § 4062.2 establishes the procedure to be followed “[w]henever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney.” A party may request a panel of qualified medical evaluators (QME panel) the first working day that’s at least 10 days after the date of mailing a request for a medical evaluation pursuant to LC 4060, or the first working day that’s at least 10 days after the date of mailing an objection pursuant to LC 4061 or LC 4062.
The specialty of a QME panel can be crucial to resolution of issues in a case. So parties often race to obtain a QME panel in a specialty they believe will be more favorable.
California Code of Regulations § 30 establishes the process for requesting a QME panel from the Medical Unit of the Division of Workers’ Compensation. Since Oct. 1, 2015, pursuant to CCR 30(b), requests for an initial QME panel in a represented case must be submitted online. To obtain a panel, the requesting party must scan and upload a written request for an examination to determine compensability for disputes covered by LC 4060 or a written objection pursuant to LC 4061 and LC 4062.
Pursuant to CCR 30(b)(1)(C), “The party requesting a QME panel online shall … (C) Print and serve a paper copy of the online request, the panel list, and a copy of any supporting documentation that was submitted online, upon the opposing party with a proof of service, within 1 (one) working day after generating the QME panel list.” Later, the parties may issue a strike from the panel. CCR 30(b)(3) states in pertinent part, “After issuance of a panel, any subsequent request on the same claim, whether made on the same day or not, is a duplicate request.”
Recently, in Lopez v. Rockstar Staffing, Inc., 2023 Cal. Wrk. Comp. P.D. LEXIS 199, the Workers’ Compensation Appeals Board (WCAB) held that a QME panel was invalid for lack of compliance with CCR 30(b)(1)(C). In that case, the defendant requested a QME panel in orthopedic surgery on Jan. 9, 2023, and one was issued the same day. The panel was served Jan. 13, 2023, but the defendant hadn’t included any of the documentation that was submitted online.
On Jan. 15, 2023, the applicant’s attorney requested a QME panel in chiropractic. He was able to obtain another panel because the applicant claimed a cumulative trauma (CT) injury, and the defendant used the start date of the CT injury to request a panel, while the applicant’s attorney used the end date. Per the proof of service, the chiropractic panel was served Jan. 16, 2023.
The WCJ found that both panels were invalid. The defendant’s panel was found to be invalid for failure to comply with the service requirements of CCR 30(b)(1)(C). The applicant’s panel was found to be a duplicate panel under CCR 30(b)(3). The WCJ found that the applicant did not seek intervention before requesting a subsequent panel, and deemed her panel to be invalid.
The WCAB rescinded the WCJ’s decision. It agreed with the WCJ that the defendant’s panel was invalid. It found that the defendant did not serve its QME panel until more than one working day after the date its panel was issued, and that such service did not include a copy of the documentation submitted. So, the WCAB concluded, the panel was invalid pursuant to CCR 30(b)(1)(C).
The WCAB noted that although the defendant’s request preceded the applicant’s, the record did not show that the applicant was on notice of the earlier request. The WCAB did not believe that she was obligated to seek court intervention before requesting a panel. It believed that the WCJ lack grounds to find the applicant’s chiropractic panel to be invalid. So it concluded that the chiropractic panel was valid, but returned the matter for further proceedings to determine the appropriate physician from the panel.
The WCAB took a strict reading of CCR 30(b)(1)(C), and the result was harsh for the defendant. Nevertheless, CCR 30(b) specifies, “The party requesting a QME panel online shall” perform certain actions to obtain a QME panel. “Shall” means mandatory under LC 15.
CCR 30(b)(1)(C) requires a requesting party to do three things after obtaining a panel online: (1) serve the panel list, with a copy of any supporting documentation, on the opposing party; (2) include a proof of service; (3) serve within one working day after generating the QME list. In Lopez, the defendant failed to comply with two of those requirements.
Previously, the WCAB upheld a WCJ’s decision that a defendant was not entitled to a new QME panel when the defendant was not prejudiced by the applicant’s failure to strictly comply with CCR 30(b)(1)(C). (Aguilar v. Healthcare Services Group, 2016 Cal. Wrk. Comp. P.D. LEXIS 515.) So, it’s unclear if the WCAB in Lopez would have reached the same result if the applicant had failed to comply with CCR 30(b)(1)(C).
Lopez possibly represents a new position by the WCAB. Defendants may now cite that opinion to challenge the validity of panels obtained by applicants if there’s a failure to comply with the regulation. So, to avoid litigation, both parties must ensure timely and proper service on QME panels.
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