By Michael P. Burns
Friday, June 25, 2021 | 0
One of the most common complaints that arise in the course of an industrial accident proceeding from a defense perspective is applying for additional QME bodies.
Michael P. Burns
Additional committees increase the risk of permanent disability and escalate the process costs. In addition, there is a general suspicion that the applicants’ lawyers are going on an unjustified fishing trip when applying for additional QME panels, particularly if the alleged injuries are labeled “skin and contents”.
There are important considerations to be made when assessing whether an application for an additional body should be challenged. If the defendant is liable for an injury, the ability to replace an additional body part is usually a medical assessment by the treating family doctor, which is objectionable in accordance with Section 4062 of the Labor Code.
In cases where the applicant is being treated, the parties must first seek the opinion of the attending physician who, in accordance with Labor Code Section 4061.5 and Cal. Code Regs., Title 8, Section 9785 (d).
In cases where an additional body part is beyond the GP’s expertise, the GP should refer the applicant to a secondary doctor who will “report to the GP in the manner requested by the GP”. This corresponds to Section 9785 (e) (3) of the Labor Code.
The family doctor “is then responsible for collecting all reports from the secondary doctors and … taking up or commenting on the findings and opinions of the other doctors”[.]“(Labor Code Section 9785 (e) (4)).
As soon as the parties receive the report from the primary treating physician, which contains or comments on the substitute capacity of the additional body part, each party can object to the report of the general practitioner in accordance with Section 4062 and request a QME panel.
These steps are often ignored by applicants and instead insist that the qualified medical assessor simply refer the parties to one in a new specialty. Unless a dispute originates from the PTP, followed by a proper objection, the Medical Department should not issue an additional panel.
In cases in which a QME has prepared a comprehensive medical-legal opinion and a new medical dispute arises, the parties must, as far as possible, obtain a re-evaluation or a supplementary evaluation by the same evaluator. If this is not possible, either party can request an additional panel to be ordered.
If there is a justified need for a QME medical committee in a different specialty, the Medical Director must issue an additional QME medical committee in the desired specialty. “Good cause” means either a written agreement between the parties or an employee compensation complaint committee order for a QME panel.
Therefore, based on medical evidence, it must be determined that additional assessment is appropriate and necessary to resolve contentious issues under Sections 4060, 4061 or 4062 of the Labor Code.
From a practical point of view, defendants can avoid ordering an additional panel by conducting an investigation that involves dismissing the QME or PTP, which refers the parties to an additional panel.
Defendants should wonder whether there is sound medical evidence to support the motion on an additional panel or whether the doctor is just postponing a categorically unsubstantiated claim. For example, a request for an internal QME panel based only on subjective claims may be insufficient on its own.
In short, the defendants were supposed to get the plaintiffs to prove their request to an additional panel by contesting the evidence on which they are based.
Other panels can also work in favor of the defendant. In situations where the applicant has received a chiropractic panel, the defendant can request a more suitable (and possibly more conservative) panel, for example in orthopedic surgery.
Rule 35.5 provides that the QME “must deal with all controversial medical questions … within the field of activity and clinical competence areas of the expert”. The QME must inform the parties “at the earliest opportunity … about controversial medical questions outside the field of activity and clinical competence of the reviewer” so that they can receive an additional panel in a different specialist area.
In the event that a chiropractic QME is unable to resolve all controversial issues such as: In accordance with 8 CCR Section 31.7 (b), the parties can commission an additional body in a different specialist area to deal with, for example, surgery. So if there are controversial medical issues that the chiropractic QME cannot address, the QME must address those it is able to and inform the parties of any controversial medical issues outside of its field of activity and clinical competence. An additional panel in a more conservative area of expertise can save a claim made in a chiropractor’s coverage.
Other QME panels are likely to continue to raise concerns among the defendants. But knowing the requirements and procedures surrounding these issues can prevent a claim from becoming an endless quagmire of QME assessments across multiple subject areas.
Michael Burns is Bradford & Barthel’s San Jose partner. This entry from the Bradford & Barthel blog is published with permission.
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