WCDefenseCA

Happy Monday dear readers!

Here we are again, slugging through our beloved swamp of California’s workers’ compensation system.  Your humble blogger brings you a panel decision today which touches on everyone’s favorite subject: panel disputes!  Indeed, when the California legislature deemed fit to strip parties of their rights to retain their own experts as part of the SB-899 reforms, the car-salesman pitch was a savings in costs.  I wonder how much money the system is saved having to litigate every panel request and specialty.

Anywho, let’s take a look at the panel decision in the case of Ceballos v. Access to Independence of San Diego.  The issue here was, of course, yet another panel dispute.  Applicant was evaluated by a psychology PQME in 2019.  When defendant tried to set a re-evaluation in December of 2020, the QME advised she was only willing to engage in a remote, telemedicine evaluation. 

Defendant requested a replacement panel on two grounds – the first that because the QME was unwilling to do an in-person evaluation, and the second because no appointment was available within 90 days of the request as per rule 31.5(a)(2). 

Applicant’s counsel objected to the replacement panel request and filed a DOR, and the matter eventually proceeded to trial.  The WCJ held that defendant was not entitled to a replacement panel and the WCAB concurred.  Relying on Rule 46.2 the WCAB noted that the rule provided that a party cannot be unreasonably denied, and that the remedy for an alleged unreasonable denial was to file a DOR and bring this to the WCAB for a hearing.  The WCAB noted that a replacement panel was not the appropriate remedy, but rather a hearing by the WCAB.

The WCAB also held that the time limits for an evaluation in rule 31.5 apply to an initial evaluation, and not subsequent re-evaluations.

So, a few thoughts on this.  First off, your humble blogger agrees with the WCAB opinion in Ceballos of course that agreement to telemedicine cannot be unreasonable denied.  But, with that in mind, what is a reasonable basis upon which to object to telemedicine?  If the QME can observe the applicant via the computer screen and hear the applicant via the audio functions, what would be the hesitation.  Now, your humble blogger would be among the first to object to a telemedicine QME evaluation for an orthopedic issue – a doctor cannot effectively take measurements of range of motion or check for Waddell’s signs of magnification over a ZOOM conference.  But with a psyche evaluation, telemedicine seems appropriate. 

What’s more, telemedicine presents a feasible opportunity for the defense community to test its rights to send a nurse case manager to observe the evaluation, and see if interpretation of the law can be forced to allow recording of a psyche exam by the defense, as discussed here.

But, on to the other point by the WCAB.  Is the limit of 60-90 days to set an evaluation really only for the initial examination?  Can the parties really be held hostage by a QME who won’t re-evaluate applicant for a year or two?  The WCAB’s decision in Ceballos focused on the language in 31.5(a)(2), specifically “a QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment” (emphasis added) and cited the panel decision of Cienfuegos v. Fountain Valley School District, a 2011 panel opinion.  This same reasoning is applied in the 2019 panel decision of Gustafson v. City of Mountain View.

So, what is a party to do when the QME cannot or will not set a re-evaluation within a reasonable time?  Well, section 31.5(a)(6) does provide a catch-all: “the evaluator who previously reported in the case is no longer available.”  Granted, it’s bit of a stretch, but if the WCAB interprets 31.5(a)(2) to apply only to initial evaluations, then perhaps a QME that refuses to provide a reasonable re-evaluation date is “unavailable” under section 31.5(a)(6).

What do you think, dear readers?  Does this interpretation violate the California constitution’s requirement to “accomplish substantial justice in all cases expeditiously”? 

Don’t be shy, dear readers… tell me what you really think!