Home > QMEs, WCJs > What Happens When the Defense Goes Along with an Improper Panel Request?

What Happens When the Defense Goes Along with an Improper Panel Request?

A recent panel opinion discussed the issue of waiver in the context of workers’ compensation.  Your gadfly blogger will quickly run through the facts so he can begin yet another angry rant against the workers’ compensation system.  (The case is Israel Granados v. Barrett Business Services).

Applicant saw a number of treating physicians within defendant’s MPN for a variety of alleged injuries, including injury to the hand, arm, wrist, upper extremity, psyche, and in the forms of a sleep disorder and headaches.  So what’s the problem with humpty-dumpty?  He decided the treating physicians weren’t giving him a high enough rating and he elected to go outside the Medical Provider Network.

When the workers’ compensation Judge ruled that the extra-MPN reports were not admissible (see Valdez).  At that point, applicant demanded panels in various specialties, psyche amongst them, citing objections to the MPN treating physician reports.  This was a puzzling development, given that none of the MPN physicians had yet issued an opinion with respect to applicant’s psyche claim.

Defendant went along with the dance, striking one psyche qualified medical evaluator from the panel, requesting the remaining PQME address certain issues.  But, after reviewing the report, objected to the psyche QME as improperly obtained.  The WCJ and the Workers’ Compensation Appeals Board both found that defendant had waived his objection to an improperly requested panel (“we will deny reconsideration because by failing to object to the section 4062 and 4062.2 process until it was complete, the defendant invited any error and waived any objection.”)

The same treatment, however, does not often extend to applicants and their attorneys.  If you are reading this blog post somewhere with privacy, go ahead and raise your hand if you’ve had a Judge allow an applicant to get a second panel because he or she became represented after the first panel QME didn’t award total permanent disability for a paper cut, even after there was an evaluation and report.

This policy of waiver applies more evenly or fairly the higher one goes in the chain of appeal, but on the ground level, far too often there is leniency afforded to applicants and their attorneys that would get a defense attorney sanctioned.

In any case, the defense bar will just have to look at this as a training tool – under these conditions, we are always at our very finest in order to get the job done.

Categories: QMEs, WCJs
  1. Larry Sittig
    April 11, 2012 at 1:20 pm

    My hand isn’t raised, but you’ve certainly got more experienced readers than I on this issue. How does said applicant now with attorney get a judge to go against LC 4062.1 (e) ? I assume they’d have to find some defect in the process or report.

    • April 11, 2012 at 1:41 pm

      It doesn’t always work (thankfully) but you’ll get an argument like “my client isn’t sophisticated and didn’t know, etc.” Defense attorneys can argue letter of the law until we are blue in the face, but the client may have to bear the cost of an appeal if the Judge decides to “liberally interpret” the law to get “justice” for the applicant.

      Obviously, Judges differ on their approach to this, but it’s just another hurdle and worry for the defense. If the applicant’s attorney is proposing an unreasonable settlement position, he can threaten to make this argument and get a new panel if the defense doesn’t give in. Even if the defense ultimately prevails, the amount of hours the defense will put in a recon/removal will far outpace the applicant’s attorney’s.

  2. Larry Sittig
    April 11, 2012 at 3:24 pm

    “Unsophisticated” as in forgot to tell the QME how the paper cut produced a shoulder, neck and back injury when they jerked in pain, hence chronic pain, depression, sleep disorder, interruption of marital relations …

    • April 11, 2012 at 3:29 pm

      Purely speaking in terms of the hypothetical – an applicant’s attorney could informally counsel an applicant up until the first panel evaluation, then jump in and suddenly the applicant is “represented.” If that were to happen, not only could the applicant get a second bite at the panel by demanding a new, “represented” panel be issued, but he could also choose the QME from the first panel without the defendant’s input. It’s just another flaw in the system.

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