Limiting Applicant to One Bite at the Apple
Have you heard the one about the applicant who tried for two bites at the apple? The story goes like this:
The applicant claimed an injury. His treating physician found relatively limited permanent disability, and the impairment he sustained was mostly not industrial in causation. So he demanded a panel and got a list of three physicians. He picked one (perhaps randomly, perhaps after an internet search of each doctor’s name).
The Panel Qualified Medical Evaluator confirmed the treating physician’s diagnosis, and the defendant-employer/insurer issued a denial notice. So the applicant decided to call in the cavalry and lawyer up.
By the time this case reaches the applicant’s attorney’s desk, the applicant has painted himself into a corner. With the treating physician and the PQME both finding against most of his claim, there is only one course of action – get a new panel, of course!
In California’s Workers’ Compensation system, the law is clear: only one bite at the apple. Labor Code § 4062.1 specifically states: “[i]f an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to an additional evaluation.”
So applicant’s attorney will try to find some defect with the panel or some defect with the defendant’s conduct while applicant was unrepresented, and demand a new panel based on this. Don’t let him get away with it!
Labor Code § 4062.3(f) gives applicant one of two mutually exclusive choices: either proceed with the evaluation as scheduled or demand a new panel. Once applicant has set foot in the PQME’s office, the panel gravy train grinds to a halt (or should, at least, if the law has any control over the matter).
When applicant has waived every right to a new panel and proceeded with that initial evaluation, the fallback argument for the applicant’s attorney involves the following: “But my client didn’t know his rights! No one advised him!”
At that point, you take out your letters and benefits notices sent to applicant, showing the form language “you have the right to consult an attorney, etc., etc.” and you’re (hopefully) home free.
In any case, the defendant has already paid for one evaluation and had zero input on who the PQME would be. After all, in unrepresented cases, no party gets to strike a PQME, the applicant just chooses one. (Labor Code § 4062.1) One bite out of defendant’s budget is plenty.
I’ve encounter some other arguments for why a formerly unrepresented applicant deserves a new panel, but that is material best left for another post.
As always, dear readers, your humble author wishes you luck in your coming trials, in court and out, and hopes this modest article has provided some assistance.
Presumably defense attorneys don’t take similar advantage when things don’t go their way?
I’ve had cases before where a panel was issued in the wrong specialty, usually a chiropractic specialty for a treating physician in anything else. But my objections are loud and frequent and well before the evaluation – I don’t think any defense attorney expects to get away with a wait-and-see strategy for what the PQME finds. What are your thoughts on the wait-and-see tactic?