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California Panel QME Evolution: Let's Admit the Process is Flawed and Ineffective

California Panel QME Evolution: Let's Admit the Process is Flawed and Ineffective

The medical legal process has evolved over the years. The Panel QME (“PQME”) process did not exist for dates of injury prior to 2005 instead medical disputes were resolved by QME’s or AME’s selected by the parties. At trial, judges were presented with medical reports from all of the medical legal evaluators, along with the primary treating physician. In order to avoid doctor shopping, SB 899 created a new procedure, described in Labor Code Section 4062.2, to obtain medical legal reports through the PQME process for injuries after 1/1/05. The idea of having one doctor evaluate an injured worker instead of two doctors with diametrically opposed views seemed like a good idea at the outset. However, the PQME process in place has fostered gamesmanship and technical arguments where one party tries to have the existing PQME in place removed for one reason or another.

Good Cause for Requesting Replacement of the Panel QME – And Good Cause for Delays

Over time, the parties have encountered flaws when using the PQME process and have availed themselves to the right to request a replacement panel. This has led to significant delays, additional discovery costs and misuse of Board time. Below is a summary of the sixteen reasons a replacement panel may be requested under 8 CCR Section 31.5(a).

  1. PQME does not practice in specialty requested.
  2. PQME cannot examine the applicant within 60-90 days.
  3. Applicant changed residence address since Panel issued and prior to the date of evaluation.
  4. PQME is a member of the same practice group of another member of the panel.
  5. PQME is not available.
  6. PQME who previously reported on the case is not available.
  7. PQME is the treating physician for the disputed injury.
  8. Parties agree to new Panel within region of applicant’s workplace, and original Panel was outside region.
  9. Medical documentation supports “good cause” for different specialty.
  10. Medical director, upon written request, may request either party to provide additional documentation or records to review to determine if specialty is medically appropriate.
  11. PQME did not send out an appointment notification.
  12. PQME issued a late report.
  13. PQME has a conflict of interest.
  14. Administrative Director issued an order for an additional PQME evaluation.
  15. PQME does not provide a complete medical evaluation, or PQME is not medically qualified to address disputed issues.
  16. Panel was issued more than 24 months ago, and no QME from that panel was used.

Common Reason for Delay – PQME Inability to Schedule within 60 Days

A very common reason for a replacement panel request is under Section 31.5(a)(2), when the PQME cannot schedule an evaluation within 60 days. Cases have been delayed many months and litigation costs have increased due to PQME’s inability to schedule within the appropriate time frame. In one particular case, four replacement panels were issued by the Medical Unit due to the PQME’s inability to schedule within 60 days. The time spent in trying to obtain an initial PQME pursuant to the current Panel process in place is over ten months and not yet concluded. The parties have been diligent in their efforts to obtain a PQME from the Medical Unit pursuant to the current PQME rules. It is still unknown when the injured worker will be scheduled to see an evaluator.

Can a WCJ Decide a Dispute Regarding the Failure of the Panel Process under the California constitutional mandate for worker’s compensation “to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character” (Cal. Const. art.XIV.Sec.4)?

Under the California Constitution Article XIV, “The Legislature is hereby expressly vested with plenary power… to create and enforce a system of workers’ compensation… and jurisdiction in an administrative body… to determine any dispute… to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.”

The Panel process is in clear violation of the expeditious mandate of the California Constitution. The workers’ compensation system has historically required WCJ’s and the WCAB to resolve disputes arising from the administration of various legislative reforms. The excessive delays are linked to the fact that Labor Code Section 4062.2 fails to establish timelines for completing the process to obtain a medical legal report. The language of the statute does not contemplate nearly one year or longer to obtain a medical legal report, and does nothing to prevent such a delay. Thus, Labor Code Section 4062.2 constantly violates the expeditious mandate in its execution. The administrative body WCJ is empowered to address such an issue and provide the appropriate remedy. The WCJ derives its authority from the California Constitution, the California Labor Code and California Code of Regulations.

Can the Parties who have been denied an Expeditious Panel Process under Labor Code 4062.2 be permitted to use the separate QME process from pre-2005?

Under the current Labor Code Section 4062.2 panel process, the applicant no longer has any freedom to select their own independent medical expert. The separate QME process in place pre-2005 worked well. There is no known authority to allow the parties to stipulate to obtaining their own separate QME’s, but there is authority under Labor Code Section 5701, that a WCJ can direct an applicant to be examined by a regular physician. Since Labor Code Section 4062.2, as administered by the Medical Unit, is shown to be plagued by excessive delays, it should be deemed in violation of the expeditious process owed to the California injured worker, and the Court should rule the parties to obtain their own QME’s under the pre-2005 system in place prior to the current PQME panel process.

How does having an Attorney Assist with the PQME Process?

The disputes are usurping the Board’s limited resources and causing significant delay in the cases. Very few in the workers’ compensation community would agree that the PQME rules have served their desired purpose. Whether it is the repeated and technical arguments the parties feel obligated to make to have the PQME thrown off the case, it might be time to admit the process is flawed.

There must be something done to simplify the process to obtain a credible and thorough medical legal report. It is debatable whether the solution is to return to the “battling QME” process that pre-dated the Senate Bill 899 in 2004 or reform the current process. It is clear however, that the current process for obtaining a medical-legal evaluation does not work.

The changes that occurred in SB 899 via Labor Code 4062.2 resulted in an ineffective, unwieldy and complicated process for obtaining medical legal evaluators. A significant amount of litigation continues to exist with selecting and obtaining a PQME. Even once the PQME is selected, the parties have to navigate how to schedule the evaluation, get information to the PQME, and communicate with the PQME. There are currently sixteen reasons to request a replacement panel. Consulting with legal counsel may help you avoid some common mistakes in the Panel process.

Contact the Law Offices of Jonathan Brand to receive your free initial consultation today with an experienced workers’ compensation attorney.

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