Sec. 31.7 Bypassed with Order for Additional Panel
Happy Monday, dear readers!
We are back, dear readers! And whether your attention has been diverted to Thanksgiving, travel, black Friday, or cyber-Monday, the show must go on. As the spoonful of internet wisdom says, “even if you are not ready for the day, it cannot always be night.” And so, dear readers, boldly and firmly, we go on to handle workers’ compensation.
Your humble blogger’s readers, whether they know it or not, have been screaming out for another blog post about panel disputes. And who, in the grand scheme of things, is the humble blogger to refuse that which literally no one has knowingly asked for?
Thus, I bring to your attention, or what I can capture of it between bites of Turkey leftovers, the panel decision in the case of Gonzalez v. Central California Child Development, Inc. Applicant, a janitor, alleged an industrial injury to the right ankle. The orthopedic PQME was no longer available, so the WCJ ordered the parties to get a replacement in the same specialty. Applicant sought reconsideration, however, arguing that there should be an order for an additional panel in the specialty of rheumatology to address applicant’s complex regional pain syndrome.
The original QME in this matter passed away, so it was necessary to replace him via a new panel in the same specialty, orthopedic surgery. However, the WCAB panel did not find that the parties should first submit this matter to the new orthopedic QME to determine if (1) there is CRPS, and (2) whether the orthopedic QME can address all issues.
Instead, the WCAB response looked a little like this:
From the panel opinion: “In this case, it appears that a second panel is warranted based on the record in order to promote an expeditious resolution of this case. Based on [the deceased QME’s] deposition, including the exhibits attached to it, a rheumatology panel will provide additional evidence on the causation of CRPS.”
The procedure for obtaining an additional panel in a different specialty, as would be the case with this second panel in rheumatology, can be found in 8 CCR section 31.7. There, the guidance is to try to have the original AME or QME resolve any new medical disputes (such as the existence and/or cause of CRPS) before obtaining a new panel. That hasn’t happened here.
Unfortunately, the original QME passed away and defendant was not able to complete discovery on an opinion regarding CRPS. Further, the new orthopedic PQME may be able to address this matter without defendant incurring the significant cost of an additional medical-legal evaluator on this case.
Instead of expediting the resolution of a case, a second QME in a different specialty often grinds progress to a halt. As soon as discovery is complete with one QME, the opinions of the other are suddenly “stale” and the entire process must begin again. A party inclined to drag out a case and delay resolution certainly has ample opportunity to do so when there are two QMEs to comment on the claim.
If your humble blogger were king of workers’ compensation, absent an agreement to the contrary, the parties would have to go through the process outlined in section 31.7 before the defendant is forced to incur the costs and delays of a second QME. But, dear readers, we are Americans, and we tolerate no kings, so here we are instead.
Straight on till Wednesday dear readers!