One of the most common complaints that arise in the life of a workers' compensation case, from a defense perspective, is applicants requesting additional QME panels.

Michael P. Burns

Additional panels increase permanent disability exposure and escalate litigation costs. Also, there is a general suspicion that applicants' attorneys are going on an unwarranted fishing expedition when requesting additional QME panels, particularly when the alleged injuries are described as “skin and contents.”

There are important considerations when evaluating whether to dispute a request for an additional panel. Ordinarily, where the defendant has accepted liability for an injury, the compensability of an additional body part is a medical determination to be made by the primary treating physician subject to objection under Labor Code Section 4062.

In cases where the applicant is being provided treatment, the parties must first obtain the opinion of the primary treating physician who “shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation,” according to Labor Code Section 4061.5 and Cal. Code Regs., Title 8, Section 9785(d).

In cases where an additional body part is outside the expertise of the primary physician, the primary physician should refer the applicant to a secondary physician who “shall report to the primary physician in the manner required by the primary physician.” This is pursuant to Labor Code Section 9785(e)(3).

Then, the primary physician “shall be responsible for obtaining all of the reports of the secondary physicians and ... incorporate, or comment upon, the findings and opinions of the other physicians[.]” (Labor Code Section 9785(e)(4)).

Once the parties receive the report of the primary treating physician that incorporates or comments upon the compensability of the additional body part, either party may object to the primary physician's report, pursuant to Section 4062 and request a QME panel.

These steps are frequently disregarded by applicants, who instead insist that the qualified medical evaluator simply refer the parties to one in a new specialty. Unless there is a dispute initiating from the PTP, followed by a proper objection, the Medical Unit should not issue an additional panel.

In cases where a QME has issued a comprehensive medical-legal report, and a new medical dispute arises, the parties, to the extent possible, must obtain a follow-up evaluation or a supplemental evaluation from the same evaluator. If this is not possible, either party can petition for an order for an additional panel.

Upon a showing of good cause that a panel of QME physicians in a different specialty is needed, the medical director must issue an additional panel of QME physicians in the specialty requested. “Good cause” means either a written agreement by the parties or an order by the Workers' Compensation Appeals Board for a QME panel.

Therefore, there must be a finding, based on medical evidence, that an additional evaluation is reasonable and necessary to resolve disputed issues under Labor Code Sections 4060, 4061 or 4062.

From a practical standpoint, defendants can avoid an order for an additional panel by conducting discovery, which includes deposing the QME or PTP who is referring the parties to an additional panel.

Defendants should question whether there is substantial medical evidence supporting the request for an additional panel, or whether the doctor is simply deferring on a claim that is fundamentally baseless. For example, a request for an internal QME panel based upon only subjective claims, by itself, may be insufficient.

In short, defendants should make applicants prove up their request for an additional panel by disputing the evidence they are relying upon.

Additional panels can also work to the defendant’s favor. In situations where the applicant has received a chiropractic panel, the defendant can request a more appropriate (and perhaps more conservative) panel, for example, in orthopedic surgery.

Rule 35.5 provides that the QME must “address all contested medical issues ... within the evaluator's scope of practice and areas of clinical competence.” The QME must advise the parties at the “earliest opportunity ... of any disputed medical issues outside of the evaluator's scope of practice and area of clinical competency” so that they may obtain an additional panel in another specialty.

In the event that a chiropractic QME is unable to address all of the disputed issues, such as surgery, the parties may seek an additional panel in another specialty under 8 CCR Section 31.7(b). Thus, if there are disputed medical issues that the chiropractic QME is unable to address, the QME must address those he is able to and advise the parties of any disputed medical issues outside his scope of practice and area of clinical competency. An additional panel in a more conservative specialty may rescue a claim that is mired in a chiropractor’s reporting.

Additional QME panels will likely continue to raise concerns for defendants. But knowing the requirements and procedure surrounding these issues can prevent a claim from devolving into an endless morass of QME evaluations in multiple specialties.

Michael Burns is a partner at Bradford & Barthel’s San Jose location. This entry from Bradford & Barthel's blog appears with permission.