Everyone remembers the old days before SB 899, where each party could pick their own QME and the case would either be tried on the two reports or settle based on a split. However with the passage of SB 899 parties must either agree to use an AME or request a panel of QMEs from the DWC medical unit.
Recently there have been some updates to this process which can be found in Sections 30-39 of the California Code of Regulations. Now the question becomes, how can I best use these new regulations to my advantage?
First, if at all possible, the defense should be the first one to file for the three member panel. Per the administrative regulations the first party to file for the panel list is the party who has the right to designate the speciality. In this situation, the defense should be careful to note regulation 30(d)(1) – (d)(3). Where there has been a 90 day delay the defense can only file for a panel QME to determine whether a claim is compensable within that first 90 days and before the claim is actually denied.
Where liability on the claim is at issue, the defense should file for a panel under Labor Code 4060 immediately, within the first 90 days of the claim, in order to determine compensability of the claim. Once the claim is denied, only the applicant may file for a panel where a dispute arises regarding the compensability of the claim. Basically, if there is a compensability issue where the industrial causation of the applicant’s injury is at issue, the defense should file for the panel at the beginning of the 90 days. Otherwise, they will be forced into a situation where they have to deny the case prior to expiration of the 90 day period, which will eliminate their right to obtain the panel to determine compensability. Essentially, under the new regulations, the defense should tread very carefully when denying a claim for medical reasons. If the defense denies the claim prior to filing for a panel QME to determine compensability based on a medical reason, they will lose there right to ask for a Panel on that issue.
The situation the defense needs to avoid is denying a case immediately for lack of medical evidence. If this is done, the defense loses its right to ask for the panel QME to determine compensability issues. Later on, if a treater’s report surfaces, which finds industrial causation, the defense could find itself without a way to counter the treater’s opinion.
Once a claim is accepted, a panel will only be issued if there is a dispute under Labor Code 4061 or 4062 regarding permanent disability or medical treatment. If the case is accepted at the outset, then the defense should try to file for the panel before the applicant does but it is not necessary for them to do so in order to preserve their right to file for a panel to resolve a dispute of permanent disability or medical treatment.
Once a panel has been received, if the speciality is incorrect or the list of physicians is less than acceptable there are several strategies that can be employed to either get the DWC Medical Unit to change the medical speciality or issue a different panel.
The default option for the Medical Unit is to issue a panel in the same speciality as the treating physician. However, applicant attorneys routinely file panel QME requests for pain management physicians or chiropractors. In most situations, this is not a good choice.
Under CCR section 31.1, if a represented injured worker requests a speciality different from the treater they must provide documentation to support the specialty request. If they do not, an objection letter should be sent to the DWC Medical Unit requesting that the panel be issued in the same speciality as the treating physician. Our office has had success in getting the DWC to issue a new panel by following this strategy.
Where this doesn’t work, it should not be forgotten that there are time limits to setting and obtaining an appointment. If the applicant doesn’t set an appointment within 10 days of obtaining the panel list, the defense may set the appointment. This is important because the party who set the appointment has the right to waive the time extension requirement. The QME must be available within 60 days but a 30 day extension can be granted. So, if the applicant timely sets the appointment, the QME will likely have 90 days to set it. If the applicant fails to timely set the appointment, the defense can set the appointment and demand the appointment within 60 days. If the QME cannot provide an appointment within the 60 days, then a new panel can be requested.
There are other ways of getting a different panel issued in both represented and unrepresented cases. One should always refer the Labor Code and administrative regulations as the above is not comprehensive. Of course, our office is always willing to answer any questions with regards to the above issues.