Before 2005, there was no Panel Qualified Medical Evaluator (QME) process in the California Workers’ Compensation system. Instead, medical disputes were resolved by QMEs chosen by the parties or by a single Agreed Medical Examiner (AME) selected by both parties. During expedited hearings, judges had to navigate through various medical reports, including those from the primary treating physician (PTP), the injured worker’s QME, the defendant’s QME, and any surgical or previous PTP reports. Judges, without medical training, faced the daunting task of deciphering medical terminology and conflicting opinions to determine appropriate treatments.
To eliminate “doctor shopping,” streamline evaluations, and gather substantial evidence for med-legal determinations, the Panel QME process was introduced through SB 899 on April 19, 2004, amending Labor Code §4062. This amendment established a new procedure for obtaining medical-legal reports for injuries occurring on or after January 1, 2005, as detailed in Labor Code §4062.2. Represented parties could either agree to an AME or follow the Panel QME process.
In 2012, SB 863 further refined the process, mandating that all medical treatment disputes for all injury dates after July 1, 2013, be resolved through Utilization Review (UR) and, if necessary, appealed through the Independent Medical Review (IMR). This legislation aimed to ensure that neither the AME nor the PQME would resolve medical treatment disputes, which would now fall solely under the jurisdiction of UR and IMR.
Good Cause for Requesting Replacement of the Panel QME
Despite QMEs no longer resolving medical treatment disputes, their expertise remains vital in evaluating future medical treatment, determining whole person impairment, and apportionment, among other issues. The Panel QME process thus remains an essential tool for Workers’ Compensation physicians.
Over recent years, parties have encountered issues with the Panel QME process and occasionally sought replacement panels. A replacement QME panel can be requested for the following reasons:
- QME does not practice in the requested specialty.
- QME cannot examine the applicant within 60-90 days.
- Injured worker has relocated.
- Panel QME is part of the same practice group as another panel member.
- QME is unavailable.
- Panel QME is the treating physician for the disputed injury.
- Parties agree on a QME within the applicant’s work region, but the original panel is outside this region.
- Medical documentation indicates a different specialty is required.
- Panel QME did not send appointment notification.
- QME issued a late report.
- QME had a conflict of interest.
- Panel QME did not provide a complete medical evaluation or is not qualified to address disputed issues.
- Panel issued over 24 months ago, and no QME from that panel was used.
Labor Code §4062.3 allows for panel replacement in case of an ex parte communication violation. Replacement may also be warranted if the initial Panel QME’s report does not constitute substantial evidence.
Effect of Ex Parte Communication With the Panel QME
Ex parte communications with a Panel QME are prohibited under Labor Code §4062.3(g) and Rule 35(k). Violations allow the aggrieved party to seek a new evaluation from another QME. The DCA case of Alvarez v. Workers’ Comp. Appeals Bd. (2010) confirmed this prohibition, with no exceptions for “administrative” matters. In Alvarez, a QME requested a copy of certain records in an ex parte telephone conversation with defense counsel. The claimant objected to the ex parte communication and petitioned for a new QME; the WCAB initially denied the petition, reasoning that the ex parte communication was not prohibited because the communication involved “administrative,” not “substantive” matters (2). The court later held to Labor Code §4062.3 that there is no exception for ex parte communication, even if it relates to administrative matters.
QME Reports not constituting Substantial Evidence
For a QME report to constitute substantial evidence, it must meet specific criteria, including a basis in “reasonable medical probability,” a legally compliant apportionment discussion per Labor Code §4663, and avoidance of incorrect legal theories. If a Panel QME’s report fails to meet these standards, as seen in cases like Azimzadeh v. Burg & Broc, the remedy involves developing the record per the McDuffie v. L.A. County Metropolitan Transit Authority guidelines, rather than replacing the QME.
In the case of Azimzadeh, the injured worker had previously been involved in a non-industrial car accident before experiencing an industrial injury. Both incidents affected the same body parts: the neck, shoulders, and back. The Panel QME’s report did not include a legally compliant discussion of apportionment, leading to a trial. At trial, the defense argued that the QME reports did not constitute substantial evidence and requested they be stricken. The Workers’ Compensation Judge (WCJ) agreed, issuing a Findings and Order to strike the reports and ordering a replacement QME panel. The applicant filed a Petition for Removal, which was granted by the Workers’ Compensation Appeals Board (WCAB). The WCAB concurred with the WCJ that the QME reports lacked substantial evidence but rescinded the order for a replacement panel. Instead, they instructed that the record be developed further according to the procedures established in the McDuffie v. L.A. County Metropolitan Transit Authority case (3).
Recent Workers’ Compensation Appeals Board (WCAB) decisions suggest a trend towards sparingly using the Replacement QME Panel remedy, favoring the development of the existing QME’s record instead. As a QME, adhering to the guidelines outlined by the DWC, including avoiding ex parte communications and producing reports that constitute substantial medical evidence, reduces the likelihood of being replaced. By following these practices, QMEs can provide reliable, high-quality evaluations and reports that stand up to scrutiny and support the fair resolution of Workers’ Compensation disputes.
References
- “Labor Code.” California Legislative Information . Accessed July 10, 2024. https://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=LAB&tocTitle=%2BLabor%2BCode%2B-%2BLAB.
- Alvarez v. Workers’ Compensation Appeals Board. Accessed July 10, 2024. Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575, on CourtListener.
- Azimzadeh v. Burg & Broc, 2013. Cal. Wrk. Comp.