Archive for November, 2015

COA: *SIGH* No, You Can’t “Buy” Your Own QME

November 2nd, 2015 No comments

Happy Monday, dear readers!

Your humble blogger always wants to be honest with his beloved readers, and to that point, it’s confession time.

Yesterday, I spent about 25 minutes with my kids searching for their Halloween candy which I had eaten the night before.  They’re not at an age to read the blog, so I’m certain my secret is safe with you.

As an act of contrition, I offer you this blog post on the Court of Appeal decision of Batten v. WCAB.  As you may recall, Batten has graced the electronic pages of this blog previously, where applicant obtained a report from a psyche doctor concluding that her psyche condition was industrial, and the WCJ rejected the actual QME’s opinions as to AOE/COE to adopt the opinions of the “hired gun” instead.

The WCAB reversed, noting that 4064 reports are relics from before SB-899, and that the only admissible medical expert reports are now through the panel process of 4062.1 or 4062.2.

Applicant argued that there was a conflict in the language of the law – 4064 allows admission of all comprehensive medical evaluations except as provided in section 4060-4062.2, but 4061 specifically limits compensability reports to the panel process (as to privately retained experts – treating physician reports are still ok).

The Court of Appeal essentially concluded that you can go and get your own report if it makes you feel better, but the report does not become part of the record.

So, dear readers, what’s the point?

Just like with a 4050 exam, the injured worker can retain a personal expert to prepare the applicant’s attorney for a cross examination, or just make the arguments directly to the PQME for consideration.  The problem for most injured workers is that they  don’t approach the case with a war-chest of litigation funds, so this tactic might be of a somewhat limited benefit.

There are a lot of meritorious arguments to returning to the pre-SB-899 format: dueling experts and each side retaining its own hired gun.  Locking both parties in the tiny QME cage and having them duke it out produces more litigation than one can shake a proverbial stick at.  On the other hand, while we are stuck with using the panel system, Batten gives a pretty good result: an applicant can have as many examinations as he or she wants, but the barrier to entry into the record remains fairly high.

Here’s a question for you, dear readers: should the applicant be able to object to closing discovery just to obtain his or her own expert evaluation and report?  Picture this timeline: panel QME sees applicant, and issues a report 30 days later finding the injury non-industrial.  After a 30-day turn around (we’re up to 2 months since the initial evaluation) the applicant’s attorney selects and retains his or her own expert under 4064, and 60 days later we have a new report from the 4064 doc finding the injury industrial.  What if the defendant filed a DOR in the meantime and wants the MSC to close out any more reports (including the QME’s review and response to the 4064 doctor’s report)?

Things to ponder on a Monday.

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