The Division of Workers’ Compensation Medical Unit recently issued a letter memorandum advising attorneys and claims personnel that the DWC Medical Unit will not make determinations on compliance with the applicable regulations on panel requests and panel assignments on represented cases. The memo directs that disputes over these issues should be brought to, and decided by, the WCALJ and not the Medical Unit or Medical Director.
This new development has raised significant concern amongst practitioners as the procedures outlined in the memo are contrary to Labor Code statutes and California Code of Regulations. This could cause significant delay in litigating cases and create the possibility of manipulation and gamesmanship by parties to a case.
Many of the rules relating to requests and assignments of QME panels are found at 8 CCR sections 30 et seq. CCR 30 holds the panel assignment shall be selected randomly from the appropriate specialty designated by the party holding that right. However, CCR 31.1 specifically allows the Medical Director to consider listed criteria and make the decision on the specialty where the Medical Unit receives two requests on the same day and list different specialties. CCR 31.5 allows the Medical Director to issue replacement panels upon occurrence of certain listed events. CCR 31.7 allows the Medical Director to issue a second Panel of QME’s of a different specialty upon a showing of good cause why that second assignment would achieve an expeditious and just resolution of medical issues. These are just a couple examples of the regulations giving authority to the Medical Director to issue determinations on these controversies.
Despite the fact that the regulations clearly give the Medical Unit authority to exercise discretion and render decisions on these disputes, it appears that due to heavy work loads and decreased staffing, the Medical Unit has adopted this policy and shifted the burden to the already-burdened WCAB. Presumably the parties to one of these PQME disputes is now required to file a DOR to get before a WCALJ and obtain a decision on the PQME dispute. This is of concern as a DOR filing may not result in an MSC for 6 months.
Some attorneys are concerned that this policy gives rise to underhanded strategies and gamesmanship. Theoretically, an attorney could object to a panel assignment and request a hearing to use that delay to “persuade” the other party into agreeing on an AME in a more desirable specialty. On the other hand, a crafty applicant’s attorney might lodge an objection to a panel assignment in hopes of extending TTD status where it is felt a P&S finding might occur after the PQME evaluation.
Only time will tell what effect this Medical Unit policy will have on the litigation of claims. Perhaps the policy will encourage use of AMEs. If nothing else, this new policy looks to cause significant delays on cases if the sole recourse is to go before a WCJ on these issues. Brace up and get your objections in early!