by Rosa Williams, Managing Partner, Michael Sullivan & Associates
It’s Monday morning, you turn on your computer, and marvel at the infinite number of e-mails of which need responding. You scratch your head as you start the process of prioritizing what will get attention first. Suddenly, the phone rings and it’s your client. She says she just received a panel of chiropractic physicians requested by applicant’s counsel and does not understand why a chiropractor would be evaluating a right hand injury.
You agree, but realize the chances of succeeding if you object to the specialty and request a replacement panel are slim. This is because the Medical Unit and the WCAB will generally allow a chiropractor to be the Panel Qualified Medical Evaluator so long as they are able to properly apply the AMA Guides in determining impairment to the claimed body part. The need to be the first in line to pick the specialty of the panel is suddenly highlighted.
So, begins the race to the Medical Unit. Labor Code § 4062.2(b) states, “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 (for denied cases) 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.” Our focus is on seeking a panel pursuant to Labor Code § 4060.
When can a party pursue a panel of QME physicians when the case is entirely denied? In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638, the Workers’ Compensation Appeals Board (WCAB) found a request for a panel of Qualified Medical Evaluators to be proper when the applicant simply waited until 10 days after the employer/insurance carrier issued a letter denying the case. From a policy perspective the WCAB added that SB 863 was intended to streamline the medical-legal process in order to eliminate unnecessary delays and expedite the process for moving a case toward resolution. Defendants sending a denial letter, therefore sufficed to meet the requirements of Labor Code § 4062.2(b).
Another pressing question is whether a party can pursue a panel of QME physicians using the delay notice and before the denial letter is issued? In one case, Montoya v. Burger Buddies, LLC dba Carl’s Jr. Restaurant, 2016 Cal. Wrk. Comp. P.D. LEXIS 242, the WCAB allowed an applicant to pursue a panel of QME physicians using the delay letter and analogized the situation to Bahena supra. The WCAB explained that the delay letter sent by defendants identified a Labor Code § 4060 evaluation would be necessary to complete an investigation. This satisfied the requirements of Labor Code § 4062.2(b) in that a request for a medical evaluation was noted. Furthermore, using the delay letter was consistent with the policy behind SB 863 of avoiding unnecessary delays and expediting resolution.
Recently however, in Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS, the WCAB adopted the judge’s decision rejecting the applicant’s assertion that the use of the delay letter was sufficient to trigger the ability to pursue a panel of qualified medical evaluators. The WCAB decision held that defendant’s delay letter did not constitute a request for medical evaluation so as to start the running of ten-day period because the letter merely set forth steps defendant may need to take to investigate applicant’s claim and stated that “[i]n order to make a decision, we may need your medical records, and evaluation(s), a deposition(s) and/or a recorded statement,” but did not make specific request for medical evaluation.
The moral of the story – make sure the delay letter you use to pursue a panel of qualified medical evaluators states that a Labor Code § 4060 evaluation will be necessary to complete the investigation. Also, please note the WCAB En Banc decision of Messele v. Pitco Foods, Inc., (2011) 76 Cal. Comp. Cases 956 which applied the “mailbox rule” to medical legal evaluations and extends the period of time in which to submit request for a panel by five days if the physical address of the party being served is within California.