Frequently the applicant and defendant in a workers’ compensation case have differing views on the appropriate specialty for the panel doctor that will determine issues related to a work related injury. More often than not the specialty disputes are not obvious such as a panel of psychiatrists being requested for an injury resulting in a broken arm. Typically, the dispute is more nuanced, such as whether a panel of orthopedic surgeons would be the more appropriate panel specialty to evaluate the applicant, rather than a panel of chiropractors, considering the nature of the injury, or perhaps the treatment provided thus far.
It is an all too familiar feeling to anxiously await the Medical Director’s response to a request for a replacement panel due to a specialty dispute. Often the Medical Unit does not have the capacity to respond to replacement panel disputes/requests regarding the specialty of the QME for many months. In the interim, the workers’ compensation case is at a standstill with regard to medical legal discovery. I have had many hearings taken off calendar in order to await the Medical Director’s response to the replacement panel request on a specialty dispute. This may not be necessary any longer. There is case law supporting this approach of waiting for the Medical Director’s response, or first seeking a decision from the Medical Unit. However, now there is additional case law that would support the matter moving forward to trial despite the lack of response from the Medical Director, or instead of seeking a response from the Medical Director to begin with. This recent case law is not binding, but it is persuasive, and provides a basis to argue moving the case forward with a trial, versus waiting for a response from the Medical Director.
Attorneys at the Workers’ Compensation Appeals Board have relied on the case Portner v. Costco, Liberty Mut. Ins. Co., (2016) Cal. Wrk. Comp. P.D. LEXIS 499 (Portner) with regard to awaiting a decision from the Medical Unit. Portner found, “…applicable rules do not permit the parties to bypass the requirement that QME specialty disputes “shall be resolved” by the Medical Director. (Cal. Code Reg., tit. 8, § 31.1(b); Cal. Code Regs., tit. 8, § 31.5(a)(10).)” (Id. at p. 12.) In Portner the WCJ submitted the issue of proper QME specialty for a decision without first directing the parties to submit the dispute to the Medical Director, and the court found this to be in the improper resolution (Ibid.)
A recent panel decision has issued subsequently that provides for an alternative, and more efficient process in which to resolve panel disputes. In the case of Porcello v. State Dep’t of Corr. & Rehab., (2020) Cal. Wrk. Comp. P.D. LEXIS 9 (Porcello) the court disagreed with Portner “[t]o the extent that Portner indicates that a party must first submit a panel specialty dispute to the Medical Director before submitting the dispute to a WCJ…” (Id. at p. 15) The court in Porcello held that the WCJ has the power to decide all discovery disputes in a workers’ compensation case, including panel disputes per the authority provided to the WCJ in Labor Code Sections 5300, 5301, and 5309 (Id. at p. 14.) The court also cites Title 8 of the California Code of Regulations Section 10330 which states in part that WCJs have, “…full power, jurisdiction and authority to hear and determine all issues of fact and law presented and to issue any interim, interlocutory and final orders, findings, decisions and awards as may be necessary to the full adjudication of the case…”
Ultimately Porcello holds that, “nothing in the Labor Code precludes a party from submitting a panel specialty 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 v. State Dep’t of Corr. & Rehab., supra, Cal. Wrk. Comp. P.D. LEXIS 9, 14-15.) Therefore, this new panel decision provides persuasive authority to request a trial on the QME specialty regardless of whether the Medical Director has provided a response to the dispute. Porcello also provides persuasive authority to seek a hearing/trial on a QME panel specialty dispute without even submitting the dispute to the Medical Director. In some instances this route may be preferred, and Porcello could be cited to support that position.