A Recommended Approach to Romero, LC 4062.1 and 4062.2

By Brock Roverud, Esq., Managing Associate Attorney, Fresno Office,
June 2019© All rights reserved. Reprinted with permission.

The specialty of a Qualified Medical Evaluator panel certainly has significant impact on the value, duration, and ultimately, the outcome of a claim. It is no wonder there is constant litigation between Defendants and Applicants when it comes to selecting the preferred specialty; Defendants preferring the conservative, orthopedic specialty while Applicant attorneys will invariably opt for the liberal chiropractic or pain management panels.

A 2007 Significant Panel Decision, Nelly Romero v. Costco Wholesale, 72 Cal Comp Cases 824; 2007 Cal. Wrk. Comp. LEXIS 168, still highlights the critical crossroad in a panel specialty dispute: the moment Applicant becomes represented and thereby triggering a jump from Labor Code section 4062.1 to 4062.2.

Currently, Applicant attorneys continue to successfully argue this 2006 case as their golden ticket to choose their preferred specialty the moment Applicant signs a Notice of Representation. In effect, Defendants are left out of the 4062.2 process and are at a tremendous disadvantage.

In Romero, the Applicant was unrepresented at the time the original orthopedic panel was issued by the Medical Unit, and later became represented resulting in her attorney’s request for a Replacement Panel in the chiropractic specialty.

At the trial level, the WCJ granted the request for the Replacement Panel, and on Defendant’s removal, the commissioners upheld the WCJs Order for the Replacement Panel in the chiropractic specialty.

The commissioners focused on Labor Code Section 4062.1(e) and 4062.2(e), explaining that an Applicant has been deemed to have “received” a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator’s examination. Because the Applicant did not yet attend and participate in an initial comprehensive medical-legal evaluation, she was entitled to a new panel in a different specialty.

However, Romero is silent on whether the 10 +5 days for mailing under section 4062.2(b) applies, which states in pertinent part:

(b) No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062 , either party may request the assignment of a three- member panel of qualified medical evaluators to conduct a comprehensive medical evaluation.

Here is the Scenario:

On an unrepresented case, a claims examiner or defense counsel objects to a medical determination and requests an evaluation consistent with LC 4062.1.

The employer submits the prescribed form to the employee who has 10 days to select a specialty. If the employee neglects to select the specialty, the claims examiner may select the specialty, which is usually orthopedic. The QME appointment is set 60 days out.

Now, the Applicant begins to panic. They seek legal representation and meet with an attorney and sign a Notice of Representation. That attorney notes the orthopedic panel and immediately writes the Medical Unit requesting a chiropractic panel under Romero and the Medical Unit complies. What can we do?

First, it is important to argue that the moment applicant signed the Notice of Representation, section 4062.2 applies:

Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section.

As we know, section 4062.2(b) mandates that “no sooner” than the 10 + 5 after the date of mailing of an objection may either party request a panel. However, in the above scenario, Applicant’s attorney failed to i) issue an objection and ii) wait the 10 + 5 in accordance with 4062.2.

Of course, Applicant’s attorney may still request a change in panel specialty, but at least 4062.2(b) allows the Defendant time to realize Applicant is now represented and request their preferred specialty (again), this time under 4062.2. In essence, the parties are completely starting the panel process from scratch.

Takeaway

Workers compensation claims are fraught with panel specialty disputes because the QME specialty has a significant impact on the claim. Applicant’s attorneys, Judges, and the Medical Unit continue to cite Romero as a basis to change panel specialties in a represented case without properly following 4062.2. Anytime an unrepresented panel exists, and Applicant subsequently becomes represented before the QME evaluation, Defendants should argue that Applicant attorneys must issue a new objection under 4062.2 and wait the 10 + 5 before selecting a new panel specialty.