Workers' Compensation Law
The Race to the Qualified Medical Examiner Panel
By Zachary Frost, Esq.
A festering point of legal consternation among many workers’ compensation practitioners is the lack of clarity regarding when and how a party is permitted to request a qualified medical examiner (QME) panel pursuant to Labor Code sections 4060 and 4062.2. The problem is founded, in large part, on the ambiguity within the statutes themselves. This ambiguity becomes obvious in various panel decisions that have been issued on this topic in the years since the 2012 SB 863 legislative reforms to the QME panel selection process. However, a glimmer of hope arises with the emerging direction of recent panel decisions dealing with this fundamental procedural issue. Knowing how these rules are being applied is essential for practitioners because whichever party validly submits the request first gets to select the specialty of the panel — for example when the defendant wants an orthopedic panel and the applicant wants a pain management or chiropractic one.
II. CONFUSION IN THE STATUTE
Until recent years, most practitioners believed that within a stated dispute over compensability, a request for a QME panel required, prior to making the request, issuance of either a denial or a delay letter by a defendant, followed by notice to the opposing party of an intent to request a QME panel under Labor Code section 4060. Labor Code section 4062.2(b) provides that when an injured employee represented by counsel is seeking a medical evaluation under Labor Code section 4060, a QME panel may be requested “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….” What is lacking here is a clear statement of what constitutes “a request for a medical evaluation pursuant to Section 4060.” Two administrative regulations (8 CCR 9812(g)(3) and 8 CCR 9812(i)(1)(B)) governing requests for a comprehensive medical-legal evaluation under Labor Code section 4060 provide that if the employer provides an injured worker with a QME request form in a delay or denial letter, the employer must also give notice in its letter as follows: “If you do not submit the form within 10 days, we will have the right to submit the form.” This seems to suggest both that a denial or delay letter is necessary to begin the QME panel selection process and, further, that notice of intent to request a panel is required prior to one’s actually requesting a panel. Unfortunately, this statutory and regulatory quagmire does nothing to provide a bright-line rule regarding who, when, or how to validly request such a panel after the filing of a DWC-1 claim form. Still, as noted, a pattern does emerge, from various panel decisions, suggesting a shift in the requisite circumstances for requesting a QME panel under Labor Code sections 4060 and 4062.2.
III. APPELLATE COURT GUIDANCE
As early as 2010 (pre–2012 SB 863 reforms), Mendoza v. Huntington Hospital (2010) 38 Cal. Workers’ Comp. Rptr. 115, 75 Cal.Comp.Cases 634 (writ denied) held that either party may request a QME panel at any time after the filing of the initial claim form. This decision was grounded in the notion that where there is any dispute about compensability, movement directly to the QME panel selection process would necessarily speed up resolution of the claim. Still, there were questions about how the issuance (or non-issuance) of denial or delay letters by a defendant might forestall channeling a claim into the mechanics of requesting a panel under Labor Code section 4060. That question was answered in part by the panel decision of Bahena v. Charles Virzi Construction (2014) 43 Cal. Workers’ Comp. Rptr. 41. Here, the WCAB affirmed the WCJ’s finding that a request by a represented applicant for a QME panel made more than ten days after the defendant sent a denial letter satisfied the requirements of Labor Code sections 4060 and 4062.2(b), even though the applicant did not first send a letter to the defendant requesting the medical evaluation. The Bahena decision expressly noted the statutory ambiguity referenced above, to wit: that it remains unclear from the statutes what exactly triggers the ten-day period that must expire before a party can request a QME panel. The WCAB rejected the prevailing view that the party seeking a QME panel must first send a letter requesting a medical evaluation and then wait ten days before actually requesting the panel itself. The WCAB thought such requirements were contrary to the SB 863 amendment to the statutes, which eliminated the provision that the parties must first attempt to agree on an AME. The WCAB also noted that there was nothing in Labor Code section 4060 requiring a party to notify the other party of its intention to request a QME panel before doing so. The WCAB subsequently confirmed the Bahema decision in Lopez v. California Pizza Kitchen (2016) Cal.Work.Comp. PD LEXIS 399. Later, in Montoya v. Burger Buddies, LLC dba Carl’s Jr. Restaurant (2016) Cal.Work.Comp. PD 242, the WCAB upheld a WCJ’s decision allowing an applicant to request a QME panel by submitting defendant’s delay letter with his request. Here, the WCJ maintained that although Bahena involved a denial letter while Montoya involved a delay letter, the reason for allowing a compensability examination under Labor Code section 4060 in both cases was the same. Still, in Rayo v. Certi-Fresh Foods, Inc. (2018) Cal.Work.Comp. PD LEXIS 58, the WCAB upheld a WCJ’s decision that an applicant’s request for a chiropractic panel under Labor Code section 4060 was both premature and invalid since, as the WCJ ruled, defendant’s delay letter did not qualify as a “mailing of a request for a medical evaluation pursuant to Section 4060.” The WCJ distinguished Rayo from Bahena in that Bahena involved a denial rather than a delay letter, and the Bahena letter contained a QME panel request form (while the Rayo letter did not). The WCJ further distinguished the ruling that in the Montoya delay letter, the defendant indicated that a Labor Code section 4060 evaluation would be needed to complete the defendant’s investigation of the claim. One year later, contrary to the holding in Rayo, Chavarria v. Crews of California (2019) Cal.Work.Comp. PD LEXIS 534 held that a party may request a QME panel per Labor Code sections 4060 and 4062.2 by using the defendant’s claim delay notice as a “mailing of a request for a medical evaluation.” The WCAB in Chavarria stated that “[b]oth parties have the right to perform discovery regarding the causation of applicant’s injury while an employer determines whether to accept a claimed injury” and, further, that “Section 4060 does not require the denial of a claim before a represented applicant can request a panel of QMEs to address the compensability of an injury.” Thereafter, in Brar v. County of Fresno, 2021 Cal. Wrk. Comp. P.D. LEXIS 36)), the WCAB upheld a trial judge’s determination that an applicant’s attorney letter issued to the defendant (demanding a medical evaluation) was sufficient to legally trigger the ten-day QME panel request process and, further, that the resulting panel was valid and binding on the parties. The WCJ concluded that the plain language of Labor Code sections 4060 and 4062.2 embodied the legislative intent behind panel process reforms and that prior panel-level decisions supported the conclusion that a letter to the opposing party submitted after the filing of the claim form was sufficient to trigger the QME panel process. The WCAB rejected the defendant’s argument that a formal delay or denial letter was first required or that a dispute should be governed by the Labor Code section 4020 definition of a contested claim. Citing Bahena, supra, the WCAB stated that the QME process had been reformed to streamline the AME and QME process and eliminate unnecessary delays in the system. The Brar panel further stated that the governing statutes do not, on their face, require claim denial prior to a QME panel request, holding that such a substantial delay before being able to request a panel created the type of unnecessary obstruction the QME reform process was intended to prevent. Likewise, the decision in Gill v. County of Fresno (2021) Cal.Work.Comp. P.D. LEXIS 51 mirrors that found in Brar. In Gill, one day after filing the DWC-1 claim, the applicant’s attorney issued a letter to the defendant stating that a medical-legal evaluation was necessary to determine compensability of applicant’s claim and demanded such an evaluation pursuant to Labor Code sections 4060 and 4062. More than ten days after the medical evaluation demand letter, applicant requested a pain medicine panel, which issued three days later. Defendant subsequently requested that the medical unit invalidate the panel list applicant had requested, stating that applicant’s letter did not constitute a valid basis for a panel QME request. Defendant argued that it is the employer who either requests the panel, or, if the employer denies liability, the employee may request a comprehensive medical evaluation to determine compensability. The WCJ held that applicant’s letter to defendant was not legally sufficient to trigger the ten-day period in which to request a QME panel. The WCAB rescinded the WCJ’s Findings and Order and issued a new finding, that applicant’s initial panel request was properly made. The WCAB in Gill held that Labor Code section 4060 permits a medical-legal evaluation to determine compensability “at any time after the filing of the claim form.” As applicant sent defendant a letter requesting a medical evaluation and waited ten days (plus five for mailing) before requesting a QME panel, applicant properly obtained a QME panel per Labor Code sections 4060 and 4062.2. The Gill panel, as with the panels in Bahena and Brar, cited to the purpose of SB 863 amendments (“to streamline the QME panel process to eliminate unnecessary delays”) as a basis for permitting an applicant’s demand letter to serve as a triggering device in the QME panel request process, stating, “we decline to impose requirements on the process for requesting a QME panel not reflected in the Labor Code and that would inhibit the expeditious resolution of a claim.”
In conclusion, it appears that since the 2012 statutory reforms (SB 863) the panel decisions dealing with the requirements for triggering the ten-day waiting period in the QME panel request process have been moving at glacial speed toward more expeditious means of having a Labor Code section 4060 QME evaluator panel issue. Still, decisions such as Rayo demonstrate that the rules governing the QME panel selection process are anything but etched in stone, either by express statutory language or existing panel decisions. Until either a clear and concise statutory mandate emerges that expressly sets out the requirements for obtaining a QME panel or an en banc decision surfaces that is finally dispositive of this issue, practitioners may have to continue to say prayers and light candles as they seek to expedite the medical-legal evaluation process.
Zachary Frost is an associate attorney at the applicant’s firm Raymond E. Frost & Associates. He is a member of the Executive Committee of the Workers’ Compensation Section of CLA.