Medical Specialty Disputes are Worth a Trial Date
The Medical Specialty of a Qualified Medical Evaluator Panel. Parties often live and die by the specialty. Defendants pull for orthopedists and applicants pull for chiropractors, and in almost every case involving a medical dispute, swords are drawn, muskets are primed, and blood is shed over which panel specialty should be controlling. Dear readers, by blood, I of course mean money in the form of litigation dollars – but for every business, and every business is to this humble blogger of some concern, blood is green and comes in paper form.
And let it be known to every workers’ compensation Judge in the land, parties will not hesitate to take the matter to trial, or even before the Workers’ Compensation Appeals Board if necessary. Such was the case in Paula Lecocq v. Associated Feed & Supply Company. There, the parties had a dispute over which panel specialty controlled (neurology or orthopedic surgery). However, the WCJ made a decision and entered a Finding and Order at the Mandatory Settlement Conference, overruling defendant’s request for a trial on the issue.
If anyone had any thoughts about the matter being resolved by simply denying a trial, the Workers’ Compensation Appeals Board managed to turn things around in a very simple and straightforward opinion. Granting defendant’s petition for removal, the WCAB held that WCAB Rule 10353(a) “[the WCJ] shall not hear sworn testimony at any conference.” Therefore, because there was no agreement of the parties and no record upon which a decision could be based, the WCJ must allow a trial on the issue.
So the defendant will have his day in court, and will have a decision to seek removal of if it comes to that.
Now, imagine if you can, dear readers, the (green) blood that was shed in resolving this issue. Even for some biased and inconsiderate people who giggle gleefully at the thought of employers and insurers having to waste money to litigate an issue, the time of the WCJ, the WCAB commissioners, and all the support staff and clerks was wasted on this dispute. And it will be wasted again and again in this case (for a trial and an appeal) and in every single cases in the EAMS system.
The panel specialty is important and can determine a lot about a case – this is evidenced by the fact that both applicants’ attorneys and defense attorneys are willing to put in the time to fight about it. IT IS IMPORTANT!
Often enough, on this blog and in the considerably less family-friendly environment of this attorney’s thoughts, your humble blogger has mused about the fact that there should be a rule that, if given enforcement consistently and uniformly, would put to rest this needless litigation and its senseless expense.
If only a rule existed that required the treating physician’s specialty to be controlling of the panel specialty.
Perhaps the pending reforms will bring us just such a delivery!
The link in your post to section 31.1 of the QME regulations suggests that there is a rule requiring the specialty to be that of the treating physician, absent a showing of reasons to select a different specialty. However, the results of efforts to have the Medical Unit apply the “rule” have been disappointing. Instead of enactment of another rule, which will be ignored or abused in a continuation of the panel QME process game, the panel QME process should be abolished, at least for represented claims. The parties should be allowed to select their own examining physicians, avoid inappropriate specialties and unqualified evaluators, and restore due process and the right to present rebuttal medical evidence.
I would concur, but the trend of “reforms” looks to be pushing away from “hired guns” and towards a central bank of expert witnesses. Perhaps, instead of a new rule, there should be an actual subsection of the Labor Code?