To Litigate or Not: Panel Qme Disputes

• Publication year: 2020
• Author: Adam Dombchik, Esq. Los Angeles, California Yvonne Lang, Esq. Oxnard, California

To Litigate or Not: Panel QME Disputes

Adam Dombchik, Esq. Los Angeles, California Yvonne Lang, Esq. Oxnard, California

Have you been wondering what types of disputes related to QMEs come up these days at the district-office level of the Workers' Compensation Appeals Board (WCAB)?

The procedure for obtaining a valid QME panel is not litigated very much anymore. The issues that come up most often at present include specialty disputes, additional panel disputes, timeliness disputes, and, with the advent of the COVID-19 pandemic, the issue of medical-legal telehealth evaluations versus delaying discovery. It is Title 8 of the California Code of Regulations that primarily guides these disputes.

Specialty Disputes

Workers' compensation claims are beset with panel specialty disputes on both sides. Why? Because the QME specialty has a significant bearing on the claim, especially at the outset of the medical-legal process.

Since the inception of the electronic QME panel request process, it has been like the Wild West: the party that draws the PQME panel list first wins (usually). If a party does not agree with the specialty requested, a two-pronged process is involved that permits requests that the DWC Medical Unit and a workers' compensation judge (WCJ) review the arguments and make a ruling. Here are the pertinent procedural regulations regarding how and when the WCJ gets involved:

§ 31.1. QME Panel Selection Disputes in Represented Cases.
(a) Disputes regarding the validity of panel requests shall be resolved by a Workers' Compensation Administrative Law Judge.
(b) Disputes regarding the appropriateness of the specialty designated shall be resolved pursuant to section 31.5(a)(10) of Title 8 of the California Code of Regulations. Either party may appeal the Medical Director's decision as to the appropriateness of the specialty to a Workers' Compensation Administrative Law Judge.
(c) In the event the Medical Director is unable to issue a QME panel in a represented case within thirty (30) calendar days of receiving the request, either party may seek an order from a Workers' Compensation Administrative Law Judge that a QME panel be issued. Any such order shall specify the specialty of the QME panel or the party to be designated to select the specialty.

Before you jump straight to the WCJ to issue your request for a replacement panel, understand the rules that provide specific guidance on how to work with the DWC Medical Unit on resolving an issue, such as requesting a replacement panel. Specifically, 8 CCR section 31.5 states in part:

(a) 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:
[¶]…[¶]
(9) 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.
(10) 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.

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One of the most hotly litigated specialty dispute issues in recent history is the use of a chiropractic panel in a case where the applicant has pled orthopedic body parts outside of just the spine (think carpal tunnel, shoulders, knees). Several panel decisions are related to this issue.

In 2018 Alma Ramirez v. Jaguar Farm Labor Contracting, Inc., Star Insurance Company, administered by Meadowbrook Insurance Group, 2018 Cal.Work.Comp. P.D. LEXIS 442, the applicant obtained a chiropractic panel. Defendant objected and requested an orthopedic replacement panel, seeking a list based on applicant's alleged injury to hands, wrists, elbows, and fingers. The Medical Unit determined that an orthopedic panel was the appropriate specialty and issued a replacement panel list based on a surgery being requested and prescription medications being prescribed, both outside the scope of the chiropractic specialty.

The WCJ also ruled that an orthopedic surgery panel was appropriate. On reconsideration, the WCAB ruled that applicant's medical treatment needs...