What is the Likely Impact Resulting from the DWC Medical Unit’s Decision to Defer Disputes Over Panel Validity to the WCALJ?
Corey A. Ingber
What is the current processing backlog for DWC Medical Unit action on received PQME panel requests? As of today, for represented cases, the WC-Medical Unit’s recorded message reflects they are now processing received panel requests as of 3/22/2011. For unrepresented cases, the Medical Unit is now processing requests received as of 6/1/2011. So, the backlog is for the represented cases. It appears they are running behind by at least 90 days.
The DWC Medical Unit is now attaching a “Notice” with each issued panel, indicating that:  Once a party schedules an appointment for a QME evaluation, and the opposing party makes a written objection of any kind regarding use of the QME from the QME panel, the QME is instructed to send a letter responsively:  That the appointment is canceled;  The amount of time, if any, already spent on the case;  A new appointment will be scheduled once the disputed issue is resolved by the WCALJ. Therefore, the DWC Medical Unit will not review panel requests either for validity of medical specialty selection or for compliance with the underlying statutes. Therefore, all panel requests from QME Form 106, if completed, will result in the issuance of a QME panel, even over objection by a party. This notice also comes at a time when it is reported by workcompcentral® that The Medical Unit has also sent a letter to physicians containing the same type of information and putting forth the same panel validity dispute policy as contained in the notice.[i] Obviously, the new policy, which came out of “nowhere” will have claims handling and practice impact.
SO WHAT DOES THIS MEAN?
- The DWC Medical Unit has not defined what they mean by “validity of panels.” Seemingly, this is limited to issues of selecting the correct medical specialty, the availability of the QME, problems with the ‘strike’ process, whether one party did or did not make a timely strike, multiple panel requests, replacement panels and the like, but we don’t know. Would this also include issues of non-medical records, including depositions and sub-rosa DVD’s being sent to the QME? I think not, but it is not entirely clear.
- For my part, I simply don’t want the DWC Medical Unit resolving these disputes, since they really can’t and they aren’t in that business anyway. The issuance of timely panels is what we want. In the past, we were seeing a significant number of QME Form 106 rejections simply because someone at the Medical Unit thought that a form was not properly completed or there did not exist the attached objection to the PTP or if there was one, it didn’t contain the magic words of the specific medical issues to which we were objecting. This only promoted the institutional delays. We also saw a lot of requests being rejected for the wrong reasons, but rejected nonetheless.
- I don’t see a flood-gate of problems here. If we weigh the overall advantages to obtaining a timely QME panel vs. the time delays, which may result on a narrow, case-by-case basis, because of disputes and the WCAB calendar, I still like this policy more than I oppose it. In other words, I want panels issued more than I want to wait 90-100 days before getting a panel issued. [and then after the panel is issued, 18 more days for the “strike” process to run its course, another 60 days for the PQME examination to occur and then another 30 days to get the report] Also, on a practical level, it doesn’t do the applicant attorneys any good to have PQME examinations canceled “on demand.” So, there is an incentive on both sides to try and resolve disputes or to prevent them from occurring.
- WILL THIS LEAD TO SOME MISCHIEF? Maybe some. A few attorneys may go ahead and request multiple QME panel specialties on every case, even when unwarranted and the DWC Medical Unit will simply issue the requested panels. Or, in an orthopedic case, a few attorneys may be more emboldened to request a chiropractic panel as a matter of strategy. It is here where you will need to develop a protocol for response. But for the most part, I don’t see wide-spread problems, since the lawyers who don’t go out of their way to create them, won’t likely be tempted. Of course the CAAA convention is this Thursday, and you know this will be a hot topic so stay tuned!
SO WHAT’S THE ADVICE HERE?
Start with prevention. Try and establish communication with applicant’s attorney over the potential use of an AME/QME for a disputed medical issue, whether under Lab C 4060/4061 or 4062. Try and agree on some things, like the specialty of the PQME in the event you can’t agree on an AME, whether an advocacy letter is agreed upon or a joint letter is preferred and what records, medical and non-medical, will be sent to the QME. By getting those things out of the way early, you simply avoid the problems associated with the panel process. But should these efforts fail…
- LOOKS LIKE A 3 -STEP PROCESS;
- STEP ONE: Use the calendar as a tool with which to resolve the dispute with applicant’s counsel. If we know that an objection will suspend the QME examination, then try and resolve the dispute before making the objection, since one you do so, the QME has no discretion not to cancel. And, benefit entitlement may depend upon the QME findings. On a practical level, waiting a 100 or more days for a WCAB hearing and then not being assured we will even go to trial, is daunting reason enough to use the new policy as a leverage point and try and resolve the dispute with applicant’s attorney. They are rarely inclined to want to delay their own cases. And, even if you prevail on the dispute, you then have to re-set the PQME examination and therefore you may not have your medial report in hand for yet another 90 days, at a very minimum!
- STEP TWO: If Step 1 fails, don’t wait until the QME panel issues and the appointment is made before raising your objection. Go ahead and object BEFORE the panel issues. Make an effort to try and get your objection and dispute to the WCAB before the panel issues, SO YOU AT LEAST GET ON CALENDAR BEFORE THE EXAMINATION. IF YOU GET A PANEL REQUEST FROM APPLICANT’S ATTORNEY AND THERE ARE FLAWS OR NON-COMPLIANCE PROBLEMS, INCLUDING SPECIALITY SELECTION, ISSUE AN OBJECTION AND FILE IT WITH THE WCAB. THEN SEND A LETTER TO APPLICANT ATTORNEY ATTEMPTING TO RESOLVE THE DISPUTE. IF YOU CAN’T OR THERE IS NO REPLY, FILE A DOR (EXPEDITED HEARING)
- STEP THREE: IF THE PANEL ISSUES AND/OR THE APPOINTMENT IS MADE BEFORE YOU GET A WCAB CONFERENCE/HEARING DATE OR THE PROBLEMS ARISE AFTER THE APPONITMENT IS SCHEDULED, THEN SEND A WRITTEN OBJECTION TO THE PQME, THE PARTIES AND THE WCAB. IF YOU CAN’T RESOLVE THE DISPUTED ISSUES WITH APPLICANT’S ATTORNEY, THEN YOU ALREADY HAVE THE WCAB DISPUTE PENDING; OR IF NO DOR HAS BEEN FILED, THEN FILE ONE AT THIS POINT. I believe the Labor Code permits an Expedited Hearing under Labor Code 5502(b) relating to “any other issues requiring an expedited hearing…”
One unintended consequence here is that the parties may be more inclined to avoid the PQME process and use AME’s. For many reasons beyond the scope of this memo, I would still contend that in most cases, the better strategy is to put up with the QME process issues rather than risk the case outcome in the hands of AME’s.
[i] workcompcentral® “DWC Letter About QME Panels Catches Attorney’s Attention”, by John P. Kamin, Legal Editor, 6/27/11