And we’re back, dear readers.  Another Wednesday has dawned, and here I am wondering just how broken-hearted the rest of the Addams Family was that they didn’t get a day of the week named after them.  How much more bearable would Mondays be if they were called Morticia instead?  Wouldn’t Thursdays be more appealing as Fester?  Yeah, probably not.  Back to the drawing board for revolutionary ideas…

Anyway, your humble blogger is guessing that your in-box is pretty saturated with Corona Virus posts, articles, webinars, etc.  Since California is looking at an exposure rate of 90,000 cases as of May 23, 2020, for a population of around 40 million, the odds of exposure at the moment are relatively low .225%.  Maybe it’s ok to do a blog post or two about something other than Covid19?

Assuming that it is, let’s talk about everyone’s favorite Workers’ Compensation subject… Panels!!!

So a big chunk of litigation and the Expedited Hearing calendar at the WCAB is panel disputes.  Well, when a claims handler issues a delay notice, the Labor Code (4060) allows the parties to request a panel of QMEs to determine the various issues in play, such as AOE/COE.

However, the road to the panel through 4060 is relatively narrow: it applies only after the claim form is filed and only if a medical-legal evaluation is required to determine compensability.

California Code of Regulations section 30 fleshes this requirement out further: a request for a panel under LC 4060 must include a claims administrator’s notice that the claim was denied or a request for an examination to determine compensability.

Well, what happens when a claims administrator delays the claim… but doesn’t request a QME examination?  This isn’t by any stretch of the imagination an unlikely scenario as there are lots of reasons to deny a claim that have nothing to do with anything that a doctor might comment on.  For example, no amount of medical professionals is going to dissuade me that the bow tie is superior to the regular necktie.

So what happens when the employer tells the claims handler that the claimant absolutely got injured but wasn’t working on the day claimed?  The applicant stopped by work on his day off to pick up a co-worker to go out and was standing in front of the shop when he got hit by a distracted driver.

Well, upon getting such a report from the employer, the adjuster might delay the claim but not want to trigger the panel process – why incur the costs and delays of a QME when AOE/COE is going to turn on a purely factual investigation?

Well, in Plascencia v. Adecco USA, Inc., a recent panel decision, a similar situation arose.  Defendant sent out a delay letter but did NOT request a QME examination as part of the delay notice.  Defendant then denied the claim. 

Applicant obtained a panel in chiropractic medicine using the delay notice.  When the defendant tried to get a panel in orthopedic medicine panel the Medical Unit rejected the request as a panel had already been issued.

The matter proceeded to trial and the WCJ found that the chiropractic panel was invalid and the Medical Unit should issue an orthopedic panel as per defendant’s request.  Applicant sought removal.

Now at this point, your humble blogger would like to point the WCAB’s statement: “[t]he issue of the validity of the chiropractic QME panel must be addressed before further discovery and proceedings are conducted.  Both parties will be substantially prejudiced by continued trial preparation without addressing the validity of the chiropractic QME panel.” 

This is a pretty important point of guidance for all parties.  The winner of a trial-level QME dispute will often tell the loser that they should proceed with the case and then seek reconsideration later.  Well that is a poor remedy, and the Plascencia panel clearly lays that out.  Removal is absolutely appropriate for a panel dispute.

Moving on to the case though, the panel sent it back to the trial level to develop the record further to (1) have the parties address whether defendant’s acceptance of the case closes the 4060 door to get a panel; and (2) locate the claim form, as one was not included in the Board record.

But that leaves us with our own questions to address.  If the delay notice does not request a medical-legal examination, can the parties still obtain a panel?

If defendant issues a delay notice but then issue an acceptance before applicant obtains a panel, can the parties still use a delay notice to get a panel?

Can the losing party of a panel dispute refuse to participate with the prevailing party’s panel pending the WCAB ruling on its petition for removal?

One of the wonderful things about workers’ compensation is that there is no shortage of fact patterns to make every case just a little bit unique. 

What do you think, dear readers?