Hello, dear readers!
It’s a wonderful day in the world of workers’ compensation. Benefits are being denied, UR is being slowly but diligently upheld by IMR, and your humblest blogger has another blog post for you!
Today’s post is the case of Maciel v. RP Automotive, Inc., in which the WCJ ordered a new QME panel due to defendant’s alleged ex parte communication with the then-QME, only to recommend defendant’s petition for removal be granted on the basis that applicant’s counsel did not assume representation until after the letter in question had been sent, and said letter was sent to and received by the then-unrepresented applicant. (Need another cup of coffee? Basically, defendant copied in-prop-per applicant with a letter to the QME, applicant’s counsel gets retained and complains of ex-parte, WCJ determines that Order granting new panel should be rescinded).
Ok, everything is peachy, right? Why is that blogger guy wasting my precious internet time on this drivel when I could be looking at pictures of cats or researching how to handle a difficult doctor (the answer to that one, dear readers, is to bring a big bushel of apples to the doctor-depo!)
Defendant files for removal. The WCAB reviews this and re-designates it a petition for reconsideration. Are you getting this?
For years and years and years, many practitioners KNEW that QME panel disputes were NOT to be the basis of reconsideration petitions, and that the consequential delay in resolution and stripping the WCJ of jurisdiction, were effectively a bad-faith delay tactic. Petitions filed petitions for “reconsideration and/or removal” and then sheepishly said “I dunno” and shrugged.
In fact, the WCAB panel held, en banc, that a dispute of a panel was proper for a petition for removal in Messele v. Pitco Foods, Inc (remember the one about how to count the first day for requesting a panel?)
Now, this panel of commissioners is opining that “[t]his requirement gives the opinions of the QME an elevated status that can be characterized as ‘critical’ to determination of the underlying issues in a case… From this perspective, a WCJ’s decision that resolves whether or not to allow a replacement QME panel in the determination of a critical issue, and a Petition for Reconsideration is the appropriate vehicle to challenge the determination.”
So, dear readers, what do you think? Going forward, are you going to file petitions for reconsideration for panel disputes? If nothing else, the Maciel opinion should be enough justification to avoid the imposition of sanctions for seeking reconsideration instead of removal.