Gilson Daub Prevails in QME Panel Dispute

Winning a battle of duplicate Panels of Qualified Medical Evaluators depends upon following the law to a T.

Recently, this Defense Attorney prevailed on a ruling that declared Defendants' panel valid, and that of the Applicant's Attorney to be defective.

During the 90-day delay period on a cumulative trauma allegation, Defendants served upon Applicant’s Attorney (AA) a request for a Labor Code Section 4060 compensability medical evaluation. Embedded in that letter was an explicit statement of preference for an orthopedic panel in the specialty of spine.

The AA became first in obtaining a Panel of Qualified Medical Evaluators through the online system. The AA selected an orthopedic panel in a specialty other than spine or hand.  However, the AA erroneously listed the beginning date of the cumulative trauma rather than the ending date. Moreover, the AA failed to attach to the panel strike communication, a copy of the QME Form 106.  Therefore, nothing evidenced Defendants’ stated preference.

Two days before receiving AA’s panel strike package, Defendants obtained their own panel in orthopedics with a specialty in spine.

Both the AA’s panel and the Defendants' panel crossed in the mail.

Both parties protected themselves by striking physicians from the opposite’s respective panel. The AA’s panel yielded a liberal-leaning evaluator, and the Defendants' panel resulted in a conservative-leaning evaluator.

Neither party conceded.  A hearing became necessary.

The AA’s only argument was that his panel was "first in time." However, Defendants countered with three arguments.

First, the AA wrote the wrong date of injury on the panel request. The Division of Workers' Compensation's own website explicitly instructs that the "ending date for a cumulative injury" should be entered for a cumulative trauma allegation.  The AA entered the beginning date, not the ending date.

Second, the AA failed to attach a copy of the QME Form 106. Labor Code Section 4062.2(b) requires this to be served: "The party submitting the request form shall serve a copy of the request form on the other party." The AA attached a copy of the Panel of Qualified Medical Evaluators, including the inscribed strike of physician, but failed to attach any copy of the request, which is the QME Form 106.

Third, the AA could not prove whether he had indicated Defendants’ preference of orthopedics with a specialty in spine. Per Labor Code Section 4062.2(b), "The party submitting the request shall designate… the specialty of the medical evaluator requested by the other party if it has been made known to the party submitting the request…"  (Emphasis added)  The Defendants indeed made known their preference with their original request for Labor Code Section 4060 compensability medical evaluation that explicitly stated this preference for orthopedics with a specialty in spine.

The Judge agreed with all three arguments, and ruled that they trumped AA’s “first in time” rationalization.  The AA’s panel was ruled invalid. Because the Defendants followed the law to a T, they were able to obtain the more favorable panel.

 

By Reed Heustis, Jr., Esq.

Jon Phillips

Gilson Daub, Inc., 34270 Pacific Coast Highway, Dana Point, CA, 92629