- Sanchez v. Grapevine Catering (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 136)
The defendant issued a delay letter. The applicant requested a panel QME pursuant to Labor Code § 4060 within the 90-day investigation. Pursuant to Labor Code § 5402 (b).
The defendants objected to the panel.
The WCAB concluded that Rule 30(d)(1) states that a defendant may request a QME panel during the 90-day period to investigate the claim pursuant to Labor Code §5402 (b).
The WCAB went on to state the Labor Code and rules were silent regarding the applicant’s right to request a panel.
The WCAB ruled the Medical Unit incorrectly interpreted rule 30(d)(1) as limiting the right to request a panel to the employer or insurer during the 90-day investigation.
The WCAB stated that such an interpretation would conflict with Labor Code § 4060, which states that a medical evaluation required to determine compensability at any time after the filing of a claim form shall be obtained pursuant to Labor Code § 4062.2. The section indicates “at any time” after filing a claim form. The WCAB further stated that Labor Code §4062.2 states that either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation.
The WCAB concluded that interpreting rule 30(d)(1) to allow only the defendant but not applicant to request a QME panel during the investigation would be invalid.
- Parker v. DSC Logistics (BPD) (2016 Cal. Wrk. P.D. LEXIS:
The applicant filed the first application on May 7, 2014. Defendant filed an answer denying injury.
On September 11, 2014 applicant filed two additional applications.
The party litigants in all three cases are identical and the parts of body alleged to have been injured overlap.
A panel of Qualified Medical Evaluators issued in the parties selected a Qualified Medical Evaluator following the striking procedure who evaluated the applicant on on January 9, 2015 and issued a report of the same date.
On February 23, 2015 the Applicant requested the issuance of two additional panels from the DWC medical unit regarding the two subsequently filed applications.
The medical unit issued two new panels.
Defendants filed a petition to vacate the two panels.
The WCJ issued an order denying defendant’s petition to vacate QME panels.
Defendant filed a Petition for Reconsideration.
Defendant contends that the factual circumstances are distinguishable from the “Navarro” case and that Labor Code 4062.3 requires the Qualified Medical Evaluator already selected should evaluate the applicant for all injuries and additional panels should not have issued.
Defendant argues that a QME was properly selected and because applicant filed three separate claims of injury prior to the physician’s evaluation, the Qualified Medical Evaluator is required to evaluate for all three claims.
The WCAB stated that Labor Code section 4060 (a), (c), and (d) all referred to a single claim form, injury or claimed injury and require that any medical-legal evaluations to determine compensability of that injury or claimed injury occur under the procedure provided for in Labor Code 4062.1.
Labor Code §§ 4062.3 (j) and 4064 (a) require the medical-legal evaluation to address “all medical issues arising from all injuries reported on one or more claim forms” while section 4064 (a) differs from 4062.3 (j) in that it does not include the phrase, “prior to the date of the employee’s initial appointment with the medical evaluator,” such requirement is clearly included by reference because the claim of injury must of been reported. A claim of injury is “reported” under section 5401 when the employee files the claim form with the employer.
Thus, the “reported date” under Labor Code §§4062.3 (j) and 4064 (a) is the filing date of the claim form under Labor Code 5401. The date of filing a claim form determines which injury claims must be considered by the medical-legal evaluator.
Labor Code §4062.3(k) provides if, after a medical evaluation is prepared, the employer or employee subsequently objects to any new medical issues, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute.
Labor Code §4067 applies to those matters in which the jurisdiction of the Appeals Board is invoked by the filing of a Petition to Reopen on the grounds that the effects of the injury have recurred, increased, diminished or terminated. Where there is already been a medical evaluation and other evaluation is needed pursuant to Labor Code 4067, the subsequent evaluation must be conducted by the same QME or AME who previously evaluated.
Labor Code §§ 4062.3 (k) and 4067 generally direct the employee to return to the same medical-legal evaluator who conducted the previous evaluation and prepared a report when a new medical issue arises related to the previously reported and evaluated injury claims.
The Navarro case makes clear that the QME is required to address all contested medical issues arising from all injuries reported on one or more claim forms prior to the initial QME evaluation. That case after reviewing all the relevant labor code sections concluded that the Labor Code requires that all medical-legal evaluations be obtained as set forth pursuant to sections 4062.1 or 4062.2 and that the Labor Code requires that an evaluator discuss all medical issues arising from all report claims of injury at the time of the evaluation.
The WCAB in that case further determined then in the case of subsequently filed claims of injury, a claim of injury filed after the initial QME evaluation, the Labor Code does not require an employee to return to the original evaluator, even when the subsequent claim of injury involves the same body parts in the same parties. The Board held that Rule 35.5(e) was invalid to the extent it imposes the additional requirement that an employee return to the same evaluator when a new injury or illness’s claim that involves the same body parts in the same parties.
The WCAB in this case stated that the applicant filed three separate applications, and defendant disputed each of them. Each of those application was filed prior to the evaluation by the QME. Thus, section 4062.3 (j) and Rule 35(c) (1) require the QME to address each claim of injury is part of his evaluation of the applicant.
The WCJ aired when he denied defendants petition to vacate the QME panels. The Board consistent with Navarro granted reconsideration and rescinded the WCJ’s order and issued a new order directing the medical-legal evaluation of the disputed medical issues in all three cases be conducted by the are ready chosen Qualified Medical Evaluator.