When you are blessed with a child’s way of thinking, you often realize that the packaging can be as fun as the toy.  Your humble blogger has, on more than one occasion, gone to great lengths to find, purchase, and assemble the perfect toy for his offspring, only to find said offspring more interested in the box.  Why couldn’t I have just bought a box instead?

Just so, dear readers, we must sometimes look at workers’ compensation with a child-like innocence, in part because trying to make sense of this system may lead to the filing of a psyche injury claim, which, of course, reveals the self-perpetuating nature of the comp system itself.

Take, for example, the case of McKinney v. United Parcel Service.  Applicant was in a car accident, resulting in the death of a motorcyclist and criminal charges, which were later dismissed.  He also faced termination of employment as a result of the collision.

The QME found that 40% of the resulting psychiatric injury was caused by the good-faith personnel action – the termination of employment.

The WCJ originally found that this opinion was not substantial evidence and found a compensable psyche injury, but the WCAB reversed in response to defendant’s petition to compel.

For the first time on appeal, however, applicant claimed that the QME’s reports were inadmissible because, during the reporting period, he was on suspension as a QME.  The WCAB noted that this issue could have been, and should have been, discovered and raised at the trial level, rather than for the first time on appeal.  That being said, the WCAB noted that the only relevant statutory authority is Labor Code section 139.2(m), which provides that the QME’s report is made inadmissible if the QME has been suspended by the relevant licensing authority, or the California Medical Board (in this case).

QMEs can get suspended for lots of reasons – late reports, improper billing, ex parte communication.  The temporary or permanent inability to get listed on QME panels and be the subject of endless debate and pointless litigation by workers’ compensation lawyers hardly speaks to the admissibility of a QME’s opinions, whether expressed in a report or during a deposition.

Now, my faithful [e-mail] followers, what can we learn from this?  Before you get to the reconsideration stage, before you get to trial, before you even make a strike from the panel, you should fully and thoroughly investigate your panel choices.  I would even be willing to bet the shiniest penny of my shiny penny collection that most defense attorneys (your humble blogger included) keep a running list of notes on the QMEs they encounter and have researched, so you can probably ask your favorite attorney for his or her notes before making a strike.

And, if worst comes to worst, you can always bring up the reasons for discipline at the QME’s deposition, and take the validity of the QME’s opinions down a peg, even if you can’t get them dismissed altogether as inadmissible.