When the applicant’s attorney “beats you to the punch” in seeking a Qualified Medical Examiner panel, you are likely to get stuck with either a Chiropractic or Pain Management specialty. And as we know, it is hardly ever the most appropriate specialty. So what can we do?
Title 8, California Code of Regulations, §31.5, QME Replacement Requests, provides the authority to seek a Replacement Panel under the more appropriate specialty.
The section starts, “A replacement QME to a panel, or at the discretion of the Medical Director a replacement of an entire panel of QMEs, shall be selected at random by the Medical Director and provided upon request whenever any of the following occurs:”
There are then 16 options provided in the section. However, subsection 10 is the only option that specifically allows for a replacement panel under a new specialty. This subsection reads, “The Medical Director, upon written request, filed with a copy of the Doctor’s First Report of Occupational Injury or Illness (Form DLSR 5021) and the most recent DWC Form PR-2 (“Primary Treating Physician’s Progress Report”) or narrative report filed in lieu of the PR-2, determines after a review of all appropriate records that the specialty chosen by the party holding the legal right to designate a specialty is medically or otherwise inappropriate for the disputed medical issue(s). The Medical Director may request either party to provide additional information or records necessary for the determination.”
Obviously, the medical record must lend support to your arguments for a new specialty as the section specifically requires the medical reports (as stated above) get sent to the medical director along with your “written request”.
Having said that, I was recently involved in a case where the medical director issued a replacement panel under the Orthopedic Surgery specialty, replacing the original Chiropractic panel. A specific and descriptive explanation was provided by the medical unit in issuing the new panel with the conclusion that the Orthopedic Surgery was the more appropriate specialty. Unfortunately, the applicant attorney did not accept the decision and we were forced to Court for a final ruling.
Our one issue was the fact that the standard as listed in subsection 10 is not which is more appropriate, the standard is whether the original chosen specialty is “medically or otherwise inappropriate”. In our case, the written explanation from the medical unit did not say that the Chiropractic specialty was inappropriate, it only stated the Orthopedic was more appropriate. For our case, we agreed to an Orthopedic AME so we do not know how the Court would rule.
A helpful hint: when writing to the Medical Unit with your “written request” for a replacement panel under the new specialty, include subsection 9 as grounds for your request. This subsection reads, “The Medical Director, upon written request, finds good cause that a replacement QME or a replacement panel is appropriate for reasons related to the medical nature of the injury. For purposes of this subsection, “good cause” is defined as a documented medical or psychological impairment.”
First, this allows the Medical Director some “wiggle room” to allow the replacement panel when it may be easier to provide the replacement when the new specialty is more appropriate, as opposed to proving the original specialty is inappropriate. At the very least, it is additional grounds and an additional argument you can make.
Secondly, you may not have the appropriate medical record as listed in subsection 10. It would appear that subsection 9 requires some medical reporting gets sent to the Medical Director to substantiate the request for the new specialty replacement. However, it does not require the sending of a “Doctor’s First Report” and follow-up report. If your case does not have the availability of these reports, then subsection 9 may be your only legitimate grounds to seek the replacement panel under the different specialty.
I hope this helps and best of luck in getting those chiropractic panels replaced.