Disputes over the proper selection of the specialty of a panel physician remain one of the most commonly litigated issues in California Workers’ Compensation cases. The courts have shown leeway in allowing generalized specialties such as chiropractic or pain management to handle more comprehensive complaints and it often comes down to making sure the correct procedure was followed to secure the appropriate panel specialty.
Understanding the application of Labor Code §§4060, 4061 & 4062 and how they interact with Labor Code §§4062.1 and 4062.2 are important in that process. The following outlines some of the basics to ensure that the parties in your case have secured a proper panel.
Compensability Exam (LC §4060):
Labor Code §4060 is used to obtain a comprehensive medical legal evaluator in order to determine compensability issues. LC §4060 is only applicable in a delayed or denied case. A LC §4060 exam should not be sought if any body part or condition has been accepted for the date of injury in question.
Compensability Exam where Employee is not Represented (LC §4060/§4062.1):
When an employee is not represented, the process to obtain a panel is listed in LC §4062.1. For compensability exams, the only requirement for an employee is that a claim form has been filed. If a claim form has been filed and the employer has not accepted liability, the employee is entitled to request a compensability exam at any time. Generally, the employee will provide notice to the employer who then submits QME panel paperwork to the employee. The employee will then complete the paperwork and send off to the medical unit at any time thereafter.
Once an unrepresented employee provides notice to the employer and receives paperwork for submission to the Medical Director, the employer also gains the right to submit a request for panel, but only after ten (10) days has elapsed from the paperwork being provided to the employee without response. After ten (10) days, either party has the right to submit for a panel list of evaluators.
Should the employer wish to initiate the process, they can also provide notice to the employee of their desire to seek a compensability exam. The process is the same and the employer provides the employee QME paperwork along with that notice. The employee has the first right to complete and return the paperwork to the medical unit. After ten (10) days has elapsed without response from the employee, the employer then gains the right to submit the paperwork directly to the medical unit.
Compensability Exam where Employee is Represented (LC §4060/§4062.2):
When an individual is represented, the process to obtain a panel is listed in LC§4062.2. A panel can be requested “no earlier than the first working day that is at least 10 days after the date of mailing a request for a medical evaluation pursuant to LC §4060.” Where both parties are represented , both stand on equal ground and simply must provide notice to the opposing party of their request for a compensability exam. Ten (10) days after the notice is provided (plus five days for mailing pursuant to Tsegay Messele v. Pitco Foods (2011) 76 CCC 1318) the panel may be requested.
The labor code requires that the request made be specifically for a medical evaluation pursuant to LC §4060, although the courts may interpret this broadly. Any communication to the opposing party suggesting the need for evaluation may suffice.
Does a Notice of Claim delay or Claim denial afford the parties a right to request a panel? In many instances a delay or denial notice is used as “notice” to the other party that a compensability exam is required. Multiple panel decisions have issued with regard to these questions although none have been deemed significant. Please note Panel decisions can be cited although are not binding precedent.
In Bahena v. Charles Virzi Construction, 2014 Cal.Wrk.Comp. P.D. LEXIS 638, the WCAB seemed to indicate that a denial notice issued in a compensability case was the only notice required to initiate the medical legal process. Language within that decision, however, still leaves open a question as to the extent this is utilized. It states, “once a denial letter is issued, if a medical evaluation is required to determine compensability, no purpose is served in holding up that process…”. Not all cases require a medical evaluation however. Some cases are denied on factual or legal grounds. Would a denial notice that only asserts a legal or factual basis for the denial also serve as the mailing of a request for medical legal evaluation? While I would err on the side of caution that any denial letter might invoke the notice requirement of LC §4062.2, a legal challenge could still be made if the denial letter lacks any foundation or request that a medical evaluation is being requested. If you are disputing the need for a medical legal evaluation such as this, be prepared to advance your defense on the legal or factual grounds right away.
Even less certain is whether a delay letter also triggers the notice requirement. In Sisto Montoya v. Burger Buddies, 2016 Cal.Wrk.COmp. P.D. LEXIS 242 (panel decision), the court held the delay notice was sufficient notice to initiate the process under LC §4060. It is noted that defendant’s delay notice in the case contained language stating “in order to make a decision, we need to complete an investigation that will include, but not be limited to, … a comprehensive medical evaluation.” Thus, the language within the delay notice did in fact request a medical evaluation specially as outlined in LC §4060.
An opposite decision was reached in Rayo v. Certi-Fresh Foods, Inc. 2018 Cal.Wrk.Comp. P.D. LEXIS 58 (panel decision). The delay letter in that case read “In order to make a determination, we may need your medical records, an evaluation(s), a deposition(s), and/or a recorded statement.” The court did not find this language sufficient to meet the request for medical evaluation standard.
In Chavarria v. Crews of California, Inc. 2019 Cal.Wrk.Comp. P.D. LEXIS 534 (panel decision) the WCAB took it a step further without discussion of exact language used within the delay letter they indicated that the combination of a claim form being filed and the employer notifying the applicant that further discovery is needed was sufficient to trigger the notice requirement. While the court found the statue should be broadly interpreted, this decision leaves significant question as to what language would not trigger the panel process. Where the dispute is legal or factual and a comprehensive evaluation would not be necessary to address the dispute, further clarification appears warranted.
Notices of Representation from applicant’s counsel should also be read carefully as under Chavarria’s broad standard they too might have unknowingly initiated the panel process.
Permanent indemnity evaluation (Labor Code §4061):
Labor Code §4061 is utilized to obtain a comprehensive medical legal evaluator in order to determine permanent indemnity issues or the need for future medical treatment (not used for an employee to object to a UR decision pursuant to LC section 4610). This code section is used after applicant has been deemed permanent and stationary by the primary treating physician. There is no time frame for this objection to issue although reasonableness will be a consideration by the court.
Permanent indemnity evaluation while Unrepresented (Labor Code §4061 and §4062.1):
Other than a claim form being required, if either the employee or the employer requests to address the extent of permanent disability or future medial treatment assessed by the PTP, an objection needs to be provided to the other party of the PTP report. Once objected to (either by the employee or employer), the employer will provide paperwork to the employee to submit a request for a panel. The employer is only allowed to submit the request for a panel should the employee not respond within 10 days from the paperwork being submitted to the employee.
Permanent indemnity evaluation while Represented (Labor Code §4061 and §4062.2):
A panel can be requested “no earlier than the first working day that is at least 10 days after the date of mailing an objection to Labor code Section 4061 or 4062.” Under Labor code section 4061, there is no other time frame or limitation as to when the objection may issue and thus notice to the other party is the only requirement.
Objection to a medical determination (Labor Code §4062):
Labor Code §4062 is used to obtain a comprehensive medical legal evaluation to address any medical determination by the primary treating physician other than those outlined by LC §4060, 4061 and not subject to Utilization Review under LC §4610. This may concern such issues as temporary disability, permanent and stationary status, work restrictions, ability to return to work, apportionment, diagnosis or causation of additional body parts.
If represented, the objection and notice of request to initiate the panel process to any of these must be made within 20 days of receipt of report of the primary treating physician. If the employee is not represented, the objection and notice must be submitted within 30 days.
Objection to a medical determination while Unrepresented (Labor Code §4062 and §4062.1):
The process will be the same as outlined above for LC §§4061 and 4062.1. Other than a claim form being required, if either the employee or the employer requests to address a medical determination of the PTP other than outlined by LC §§4060 or 4061, notice needs to be provided to the other party within 30 days of receipt of the report. Once objected to (either by the employee or employer), the employer will provide paperwork to the employee to submit a request for a panel. The employer is only allowed to submit the request for a panel should the employee not respond within 10 days of the paperwork being submitted to the employee.
Objection to a medical determination while Represented (Labor Code §4062 and §4062.1):
The process will be the same as outlined above for LC §§4061 and 4062.2. A panel can be requested “no earlier than the first working day that is at least 10 days after the date of mailing an objection to Labor code Section 4061 or 4062.” The objection under Labor Code §4062 must be made within 20 days of receipt of the report.
Timing of Objection under LC §4062:
A recent panel decision Perez v. Armando Chan, 2020 Cal.Wrk.Comp P.D. Lexis 384 did discuss the time frame for an objection to a PTP report under LC §4062.2. Applicant was unrepresented when evaluated by the PTP with a report being produced 10/30/2019. Applicant become represented on 11/19/2019. An objection issued by applicant’s counsel on 12/04/2019. No evidence was presented that applicant had previously received the medical report. The court held the first notice to applicant’s counsel could not have been prior to 11/19/2019 and the objection that issued on 12/04/2019 was within the 20 day time frame to object allowing the panel obtained pursuant to that objection to be valid.
The Romero decision:
As we all may recall, Romero v. Costco Wholesale, (2007) 72 CCC 824 held that where a panel was obtained pursuant to LC §4062.1 while the employee was unrepresented, but the individual does not attend an exam from the panel list prior to retaining counsel, the panel would no longer be valid. The decision instructs the parties to obtain a new panel using the process defined by Labor Code §4062.2. The court reasoned that the panel process for individuals who are represented converts to LC §4062.2 upon representation which has a different set of requirements in order to initiate the medical legal process.
I often still see however requests for a replacement panels, submitted to the medical unit on the same date notice of representation has been provided, that are granted by the medical unit. This would not be valid either. The Romero case does not grant applicant the right to a replacement panel, but rather to initiate the process as outlined pursuant to LC §4062.2. This would require notice and waiting the ten days plus five prior to requesting a new panel.
In my opinion, since the change in status from unrepresented to represented invalidates the prior notice, this would require either party to issue a new request for evaluation pursuant to either LC §4060, 4061 or 4062 before a new panel request can be made. It only makes sense that all notice requirements start anew, but the courts broad interpretation of notice in Chavarria seems to make that less certain.
At a minimum, the notice of representation on behalf of applicant would require the parties to wait ten days plus five before submission of a new panel request can issue. Current litigation is pending on these issues with further updates to follow.