Catlin v. J.C. Penny (BPD) Espinzoa V. GFC holdings (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (106):
The WCJ issued an order to attend a consultation re-examination regarding ongoing medical treatment with an Agreed Medical Evaluator, pursuant to Labor Code §4050.
The WCAB rescinded the decision and found that medical treatment and medical legal disputes, examination and reporting process has been modified to the point that the original purpose of Labor Code §4050 was subsumed by more specific statutes, including Labor Code §§4060, 4061, 4062 and 4610, and medical examinations pursuant to Labor Code §4050 cannot circumvent process set forth in these provisions.
However, where there was no evidence in the record as to whether additional examination by Agreed Medical Evaluator was necessary, the WCAB return the matter to the WCJ for further proceedings on that issue.
Espinoza V. GFC Holdings (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (239):
The WCJ issued an order invalidating a panel of Qualified Medical Evaluators on the basis that the panel was prematurely obtained prior to receipt and review of the report from the primary treating physician.
The WCAB rescinded the order and found that because defendant disputed applicant’s claim of injury AOE/COE, objection to a treating physician’s report was not necessary prior to obtaining a panel of Qualified Medical Evaluators pursuant to Labor Code §§4060 and 4062.2.
The WCAB found that because defendant disputed applicant’s claim of injury, objection to a treating physician’s report was not necessary prior to obtaining panel of Qualified Medical evaluators pursuant to Labor Code §§4060 and 4062.2.
The Labor Code §4060 process leading to issuance of a panel of Qualified Medical Evaluators can be initiated any time after filing a claim form.
Dorantes v. Dirito Brothers (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 237):
The WCJ denying applicant’s request for a replacement panel of Qualified Medical Evaluators in the field of orthopedic medicine.
The applicant filed a petition for removal.
The WCAB denied removal even though the Qualified Medical Evaluator’s supplemental report was untimely and despite applicant’s assertion that the report was not substantial evidence.
The WCAB reasoned that although Reg. §38 (i) creates guidelines which require supplemental reports to issue within 60 days, the rule must be read in conjunction with Labor Code §4062.5, which does not mandate replacement of Qualified Medical Evaluator for untimely supplemental reports.
The WCAB has discretion to order a replacement panel for good cause when supplemental report is untimely. Here, there was no good cause for replacement panel because there was no evidence that delay in supplemental report caused any prejudice to applicant. The prejudice against the time lost from starting over with a new panel of Qualified Medical Evaluators and that fact that the Qualified Medical Evaluator had evaluated on the case for over two years, evaluated applicant twice and issued five reports during that time.
The WCAB further found the issue of whether the report was substantial evidence was not grounds for a replacement panel.
Granillo, Applicant v. Southern Farmland (BPD) ( 2016 Cal. Wrk. Comp. P.D. LEXIS 590):
The WCJ found that applicant’s industrial injury caused temporary disability from 5/11/2013 through 6/27/2013, based on report of primary treating physician, Richard Scheinberg, M.D.
The WCAB reversed and held that applicant’s period of temporary disability continued through 11/13/2014 pursuant to report of panel qualified medical evaluator Craig MacClean, M.D.
Defendant objected to Dr. Scheinberg’s report and Craig MacClean, M.D. was chosen to evaluate the applicant as panel qualified medical evaluator.
The WCAB rejected the WCJ’s finding that applicant’s failure to independently object to Dr. Scheinberg’s permanent and stationary report pursuant to Labor Code §4062 constituted waiver of objection to that issue based on rationale in J.C. Penney Co. v. WCAB (Edwards) (2009) (74 Cal. Comp. Cases 826)
The WCAB concluded that, contrary to circumstances in Edwards, where neither party objected to primary treating physician’s report, defendant here timely objected to Dr. Scheinberg’s report so as to trigger process in Labor Code §4062.2.
Requiring that applicant make his own separate objection to Dr. Scheinberg’s report would contravene entire scheme for prompt resolution of medical disputes as set forth in Labor Code §§4060-4062 because it would potentially lead to multiple panel qualified medical evaluators reporting in case, depending on number of disputed issues.
Dr. MacClean, as properly designated panel qualified medical evaluator was required to address all issues in dispute, including applicant’s permanent and stationary status, and that Dr. MacClean’s reporting constituted substantial evidence on the issue of permanent and stationary date.
Gonzales v. ABM Industries (BPD) (45 CWCR 42):
The applicant sustained an admitted industrial injury.
The parties requested a panel of Qualified Medical Evaluators in the specialty of pain management. As the one of the physician’s named in the panel was an indication “via telemedicine”. A footnote on the panel list states: “via telemedicine”, Evaluation will take place through the use of telehealth using interactive audio, video or data communication.
After the striking process the physician would evaluate: “via telemedicine” was the physician chosen to evaluate the applicant.
Applicant objected to the evaluation via telemedicine and requested a replacement panel. Defendant objected.
The matter was set for status conference and the WCJ issued an order for a replacement panel.
Defendant filed a petition for removal.
A panel incorporated the WCJ’s report and recommendation in its entirety. The report stated that the parties are not ordinarily told whether a telemedical QME would participate by e-mail, by computer screen with the camera (with or without audio), or by telephone.
In this case the medical director provided documents indicating that the physician supervises a designee throughout the exam and the designee would have a chiropractic license and a QME certification and would have completed other educational requirements under QME via telemedicine requirements standard of care.
The physician provided a consent form making it clear that a patient may refuse to participate in the valuation via telemedicine.
Defendant argued that QME rule 49.2’s requirement the medical evaluation concerning an uncomplicated neuro- skeletal injury must include no less than 20 minutes of face-to-face time may be satisfied by a live video feed.
The WCJ, however, saw no assurance in the provided documents that the physician would actually participate in the live feed, or would be one of the faces for a minimum of 20 minutes.
Further, applicant pointed out that the regulations require face-to-face time actually spent with the injured worker.
The WCJ reasoned there was a strong inference that virtual face-to-face does not qualify derives from the statute use of the word actually.
Additionally, pursuant to Labor Code §4628(a) no person, other than the physician who signs the report shall examine the injured employee.
The WCJ also reasoned that even if all statutory conditions had been considered when reviewing and weighing the QME’s application, the consent form with the opt out provision must’ve been a compromise in granting the application.
Finally, the WCJ believed it significant that the QME’s designee was not named on the panel list or in any other documents provided and that nowhere is the designee’s name or specialty disclosed and only later revealed by the physician to be a chiropractor, not a pain management physician. Without that information at the time the panel issued either party can make a knowing decision.
The panel points out that there was no demonstration by defendants that substantial prejudice or irreparable harm would occur if replacement QME panel issued. Given the absence of prejudice removal was not warranted.
Garza v. O’Reily Auto Parts (BPD) (1017 Cal. Wrk. Com. P.D. LEXIS 3):
The WCJ held that a panel in Orthopedic Surgery was appropriate for an applicant who submitted a panel request naming the specialty of chiropractic.
The WCJ reasoned that the right to select a panel specialty is not absolute, because the legislature qualified this right by making it subject to being a selection in the appropriate specialty.
Following a request for a replacement panel, the medical director issued an orthopedic panel as being in the applicant’s best medical interest because of the evidence of diabetes and an infection and necrosis of the total.
Applicant filed a petition for reconsideration.
The WCAB found that the applicant failed to show irreparable harm by the WCJ’s reasoning upholding the appropriateness of the medical specialty.