What’s your favorite type of shopping, dear readers? Do you love to show your hunter’s skills by pushing to the front of Christmas shoppers? Or perhaps you like reaffirming your ancient gathering skills by shopping for a car – going from dealership to dealership until you’ve gathered just the right amount of savings.
Well, for us in the workers’ compensation world, it’s not practice guides or suit-cases we shop for. It’s isn’t the best surgeon or the most efficient legal research program. It’s doctor shopping that we love!
Every single practitioner trying to keep his QME (or AME) bemoans the practice of doctor shopping. Every single practitioner trying to bounce a QME (or AME) can recite, by heart, any reason to challenge the QME/AME status and get another bite at the apple. It’s not personal and it’s not specific to applicants or defendants.
In the case of Lopez v. Hemington Landscape, applicant sought to get a replacement PQME because the QME was unable to schedule a re-evaluation within 60 days of the request. Regulation 31.5(a)(2) allows for a replacement panel when a QME can’t schedule an initial evaluation within 60 days (or 90 days if the applicant is in agreement), but is rather silent on the question of a re-evaluation.
Lopez contended that section 31.5(a)(2) should apply to initial evaluations and re-evaluations, which, if sustained, would have entitled the parties to seek a replacement panel. The matter proceeded to trial and the WCJ found that the request for a re-evaluation is not an “initial request” which would normally start the 60/90 day clock to set an appointment (“cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment…”)
Other than pointing out that panel and discovery disputes are not final orders, and therefore not grounds for reconsideration, but rather removal, the WCAB didn’t provide much guidance on this issue. Does the phrase “initial request” refer to an initial request for any evaluation, or, rather, does the initial request have to be only for the initial evaluation?
As noted by the WCJ, the applicant’s attorney pointed out that another WCJ in the same venue had recently found the opposite result: 31.5(a)(2) applies to ANY evaluation.
There are valid arguments on both sides of this interpretation, of course. On the one hand, there’s a strong policy militating against doctor-shopping. The reasons to bounce a QME and get a new panel should be fairly narrow, no? After all, if a party gets a bad report (“counsel, I’m medically certain that the nail-gun shooting a nail into his head is industrial…”), it need only wait until it hears the PQME is busy, then request an evaluation and get a new panel.
On the other hand, imagine this scenario: the QME doesn’t set a re-evaluation date… EVER…
Seriously – what’s to stop a PQME from declining to see an injured worker for 6 months? A year? Realistically, it’s probably not going to happen, but it seems like the point in these regulations is to help move these cases along. Remember, dear readers, it’s not like we can just go out and get our own experts – such a system would be crazy and totally unheard of!
If a QME can’t get his report in on time, bounce him and get a QME who can. If a QME can’t see the injured worker on time, bounce her and get one who can. What is the distinction between the initial evaluation and the re-evaluation?
At this point, your humble blogger’s spirit has been broken by worker’s compensation to the point that he’s fine with either result. He’s not looking for justice or even reason – just guidance as to what the rule is so we don’t have to have more trials on this little point.
What about you, dear readers? Would you prefer a world full of rainbows where a QME has to set initial and re-evaluation appointments within 60 days? Or would you prefer a land of unicorns where a QME can set re-evaluation dates at his or her convenience? Or would you prefer a world much like our own, only with some clear-cut guidance one way or another?