The panel Qualified Medical Evaluator system certainly has its advantages – less doctor-shopping, less doctor and deposition fees, etc. On the other hand, it has the ridiculous effect of sticking parties with a list of three (effectively two, once the other side uses its strike) choices in who the panel QME will be. After all, the physician may not be actually qualified or may have an applicant’s bias (“What do you mean it’s NOT industrial? There is no such thing!”).
Parties will try every trick in the proverbial book to get out from under a bad panel. The recent case of Sharon Frink v. Shasta-Tehama-Trinity Joint Community College is no exception. The basic point of this case was that applicant was evaluated by a PQME in Anderson, California. The PQME then moved his office to Redding, California. The two offices were 15 miles apart.
Naturally this warrants a new panel, because the doctor was obviously “unavailable” under California Code of Regulations section 34(b). Applicant’s attorney moved for a new panel and the defense filed a petition to compel attendance at the PQME’s new office in Redding. Reading the plain language of the rule, the workers’ compensation Judge ordered the Medical Director to issue a new panel. It may be just your beloved cynical blogger’s observations, but it seems that asking a WCJ to apply the plain language of a rule or statute is usually a fruitless effort when done by defendants.
Defendant promptly petitioned the Workers’ Compensation Appeals Board for removal. Dear readers, if you are wondering why this issue was not the subject of a petition for reconsideration instead, might I suggest you glance at the “Reconsideration or Removal?” posts. In granting the defendant’s petition for removal, the WCAB held that “the Legislature intended to prevent the AME/QME selection process from restarting where there is a reasonable possibility that the injured worker return to the same medical evaluator.” This policy “both minimizes medical-legal costs and thwarts attempts to doctor-shop.”
In other words, a 15-mile-drive is not an unreasonable burden for the applicant to undertake.
Interesting that it was felt that 15 miles was too far to travel for PQME re-evaluation. In Socal, it is not uncommon for a consulting physician to request a patient to travel 65 miles to his surgi-center for an epidural injection. I guess this patient’s attorney did not think that 65 miles for this treatment was not a burden for the patient (or for the carrier to provide transportation).
I guess these examples raise attention to which side of the fence you find yourself.
Bob – you’re absolutely right. There is no way that an attorney tells his or her client: too bad the doctor is now 15 miles away, this was a really applicant-friendly PQME and now we’ll have to take our chances with the Medical Unit again. Zealous advocacy of one’s client, plain and simple.