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Goldilocks and the Three QMEs

March 22nd, 2013

Believe it or not, there are still some old dinosaur cases roaming around that are using the pre-2005 dueling QME system.  Your humble blogger knows some attorneys that still long for the old days when QMEs were retained, armed to the teeth, and sent to battle to the death at the Board Thunderdome (two docs enter, one doc leaves!)

MDs fighting

But now we live in more civilized times, where applicants still choose their own QME (in the form of a treating physician), and defendants much take their pick from the stacked deck of panel qualified medical evaluators.  Generally speaking, only Asbestos matters and pre-2005 cases allow each party to retain its own expert.  (Although your humble blogger has heard that some Judges used to allow parties to pick their own QMEs if the Medical Unit dragged big, Medical feet.)

Recently, your humble blogger, in his search for the latest and greatest case developments, stumbled across a rare gem going over the limits of the QME dance.  In particular, how much Earth is an applicant’s attorney allowed to scorch by finding new QMEs to run up defendant’s bill?  Can Goldilocks, Esq., send six bankers’ boxes of medical records to a new QME every two months until she finds one that is “just right?” (Or until the bills to the defense are “just right?”)

Not so much.  Applicant’s counsel went through three QMEs in the case of Larry Wiacek v. Fujitec America, and wasn’t too happy when the workers’ compensation Judge wouldn’t let him use the third’s report.  Relying on McDuffie v. L.A. County Metropolitan Transit Authority (2002, en banc), the WCJ held that applicant’s counsel could not simply bounce from QME to QME at the defendant’s expense, but had to follow a set procedure – which includes seeking supplemental reports, deposing the QME, and ultimately seeking Judicial assistance in finding a new medical examiner.

In the Wiacek case, however, applicant just picked a new QME and moved on, leaving a wake of unfinished reports and unjustified bills for the defendant to pick up.

The WCJ in this case allowed applicant to present the reports of the second QME because the first did not provide an AOE/COE determination, and then the case got weirder!  The second QME (and I remind you, dear reader, that naming names is disfavored in this little corner of the Internet), found exposure to coccidioidomycosis infection while driving between the Bay Area and Los Angeles during his weekends away from the job-site in L.A.  (This started out as an asbestos claim, but turned into a claim of “valley fever)

The WCJ would not admit the reports of the third QME because applicant did not follow the McDuffie procedures before moving onto a third, and the second QME provided an AOE/COE determination.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Now mind you, dear readers, this case is important – there are applicant’s attorneys out there (and again, I won’t name names) who have a policy of costing defendants money: either through settlement or through litigation costs, those evil monsters who dare to employ someone in California are going to pay!  One way to do this is to drive up litigation costs: duplicative subpoenas, unnecessary document production to physicians and infinite supplemental report requests, and other tricks of a similar nature (no need to give people any ideas…)

It’s important to rein in such waste and the WCJ did a good job of it here.

As a side note, the WCJ also found that the injury fell under the scope of the going and coming rule, which is a pleasant result to see.

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