Grinberg: WCAB Says No Substitute Panel for Lacking PQME| Staff Compensation Information

By Gregory Grinberg

Tuesday, February 9, 2021 | 65 | 0 | min read

When I was knee high to a grasshopper, a teacher came over to collect a homework assignment. When I did not submit this assignment, Teacher accused me of not doing it. I showed the likelihood of a legal career at a young age and replied that there was no way it could prove that I hadn’t. After all, the lack of evidence is not evidence of the absence. I suggested that we just agree not to agree, but the arguments weighed no. So life is.

Gregory Grinberg

Zoom in on December 2020 as the Workers Compensation Appeal Panel examines a defendant’s motion for removal in the Panameno v Northgate Gonzalez Market case. The plaintiff alleged injuring various body parts in 2015, only to deny the defendant’s claim.

The applicant was approved in 2017 by Dr. Satish Kadaba rated. The panel’s opinion indicates that nothing happened until 2020 when the defendant attempted to replace Kadaba as there was no response to defense efforts to determine his deposit. A recent search of the Qualified Medical Reviewer database did not find a Kadaba as a current QME.

The medical department responded to the replacement request by asking the defense attorney to admit her to the WCAB. In the trial on the matter, the defense argued that Kabada could not be found to cross-examine and that there was no evidence as a QME panel at the time of the 2017 audit.

The WCAB upheld the trial judge’s denial of the defendant’s petition to delete Kabada’s reports and issue a replacement. Regarding evidence that Kabada was no longer a PQME at the time of the 2017 audit, the defendant apparently referred to an exhibit that was not offered as evidence. Also, according to the WCAB panel, there was insufficient evidence in the records that the PQME was not available.

The petition was denied and the defendant asked to object to the reports in the trial against the Commander-in-Chief.

So here are some thoughts on the matter. First off, I would say that it is absolutely unfair for the PQME to be looser than me. Shouldn’t qualified medical assessors have the burden of proving that they are indeed qualified?

That being said, Rule 35.5 (f) of the California Code of Regulations requires a QME to be available for deposit within 120 days of the notification of the deposit. Well, we’ve all read about these charming cases where SWAT teams have a 48 hour break with an empty house. This is the employee equivalent. Should the defendant notice a deposit and then wait 120 days to get a replacement?

Such an interpretation appears to contradict California’s constitutional requirement that lawmakers “must expeditiously achieve substantial justice in all cases.” Either the defendant must wait these four months to begin the replacement panel trial or the defendant should take action if a medical examiner does not respond to a deposit within a reasonable time and with reasonable effort.

Wouldn’t it be easier to replace a PQME for whatever reason if the medical department responded to a request from the replacement panel by requesting a response from the QME and, without such a response, granting the request?

Gregory Grinberg is the managing partner of Gale, Sutow & Associates’ SF Bay South office and a certified employee compensation law specialist. This post was reprinted with permission from Grinberg’s WCDefenseCA blog.