What the panel ordered
Petition for reconsideration granted; replacement panel denied; additional panel in neurology granted; all other issues deferred
Petition for reconsideration granted, prior Findings, Order and Award rescinded and substituted, matter returned to trial level for further proceedings
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Dr. D'Amico could not provide a specific diagnosis for neurological issues and recommended further studies; good cause found for additional neurology panel.
From the decision · page 6Here, in a report dated September 11, 2023, orthopedic PQME, Dr. D'Amico, indicated that with respect to applicant's alleged neurological issues, he could not provide a specific diagnosis. (Defense Exhibit A, p. 23.) As such, he recommended a "repeat EMG/nerve velocity study of both upper and lower extremities" as well as a "neurologic consultation." (Id. at p. 24.) Thereafter, a timely petition requesting additional panels in various specialties, including neurology, was submitted by applicant on August 23, 2024.
No sufficient evidence of ethical violations by Dr. D'Amico to warrant disqualification; WCJ's denial of replacement panel affirmed.
From the decision · page 5AD Rule 41 lays out ethical requirements of All QMEs. It states, in pertinent part, that "[a]ll QMEs, regardless of whether the injured worker is represented by an attorney, shall...[c]ommunicate with the injured worker in a respectful, courteous and professional manner." (Cal. Code Regs., tit. 8, § 41(a)(5).)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. D'Amico did not provide a specific diagnosis for neurological issues and recommended further testing and consultation.
Favours Applicant prevailed
Supported finding of good cause for an additional neurology panel.
From the decision · page 2In his September 11, 2023 report, Dr. D'Amico opined, in relevant part, that applicant's neurological issues may have been "an exacerbation at most." (Defense Exhibit A, p. 23.) Although he did not believe the neurological issues were "caused or aggravated" by the industrial injury, he conceded that he did not have a specific diagnosis. (Ibid.) Ultimately, he recommended
Applicant's allegations of bias and ethical violations by Dr. D'Amico were not supported by sufficient evidence.
Favours Defendant prevailed
Supported denial of replacement panel and disqualification of Dr. D'Amico.
From the decision · page 5As the petitioning party, applicant carries the burden of proof. (Lab. Code, § 5705.) Based upon our review of the current evidentiary record, we do not find sufficient evidence to support a violation of ethical requirements under AD Rule 41 which would warrant a disqualification of Dr. D'Amico. As such, we discern no reason to disturb the WCJ's finding on the issue of a replacement orthopedic panel.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Neurological issues may have been an exacerbation at most; no specific diagnosis; recommended repeat EMG/nerve velocity study and neurologic consultation.
Dr. D'Amico's inability to diagnose neurological issues and recommendation for further evaluation supported granting additional neurology panel.
From the decision · page 2In his September 11, 2023 report, Dr. D'Amico opined, in relevant part, that applicant's neurological issues may have been "an exacerbation at most." (Defense Exhibit A, p. 23.) Although he did not believe the neurological issues were "caused or aggravated" by the industrial injury, he conceded that he did not have a specific diagnosis. (Ibid.) Ultimately, he recommended
Evaluated applicant and issued initial and supplemental reports; became unavailable leading to replacement panel.
From the decision · page 2The parties proceeded with discovery and retained orthopedic PQME, Dr. Howard Sturtz. Dr. Sturtz evaluated applicant on January 15, 2020 and issued two reports: an initial report and a May 5, 2020 supplemental report.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 41(a)(5)
All QMEs must communicate with injured workers in a respectful, courteous and professional manner.
Applied to assess alleged ethical violations by Dr. D'Amico and disqualification request.
From the decision · page 5AD Rule 41 lays out ethical requirements of All QMEs. It states, in pertinent part, that "[a]ll QMEs, regardless of whether the injured worker is represented by an attorney, shall...[c]ommunicate with the injured worker in a respectful, courteous and professional manner." (Cal. Code Regs., tit. 8, § 41(a)(5).)
Cal. Code Regs., tit. 8, 31.7(b)
Additional QME panels in different specialties require a showing of good cause.
Applied to determine entitlement to additional neurology panel based on Dr. D'Amico's recommendation and lack of specific diagnosis.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's allegations of bias, disrespect, and ethical violations by Dr. D'Amico were not supported by sufficient evidence.
From the decision · page 5As the petitioning party, applicant carries the burden of proof. (Lab. Code, § 5705.) Based upon our review of the current evidentiary record, we do not find sufficient evidence to support a violation of ethical requirements under AD Rule 41 which would warrant a disqualification of Dr. D'Amico. As such, we discern no reason to disturb the WCJ's finding on the issue of a replacement orthopedic panel.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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