What the panel ordered
Petition for Removal granted; WCJ's Findings of Fact and Orders of July 22, 2021 rescinded; new decision issued finding the QME panel was properly obtained and the panel specialty appropriate; parties ordered to utilize the QME panel number 7413157.
Applicant seeks removal of the Findings of Fact and Orders issued by the WCJ on July 22, 2021, which found the QME panel was improperly obtained. The WCJ issued a Report and Recommendation to deny the petition. The Appeals Board granted the petition, rescinded the WCJ's Findings of Fact and Orders, and issued a new decision.
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.
The Appeals Board found that applicant properly obtained the QME panel in accordance with Labor Code sections 4060 and 4062.2, relying on the delay letter as a valid basis for requesting the panel and rejecting the WCJ's contrary finding. The Board also found no evidence that the specialty chosen (chiropractic) was medically inappropriate, and defendant failed to request a replacement panel specialty.
From the decision · page 4Defendant sent applicant a delay letter on April 23, 2021 stating that her claim was on delay pending, among other items, a "med-legal examination." Defendant's delay letter thus expressly stated that a medical-legal evaluation was necessary in order to make a decision regarding her claim. Applicant waited the requisite time from mailing of defendant's delay letter before requesting a QME panel from the Medical Unit on May 19, 2021. She therefore properly obtained a QME panel in accordance with sections 4060 and 4062.2.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not provide evidence or request a replacement panel specialty to show the chosen specialty was inappropriate.
Favours Applicant prevailed
Without such evidence, the Board found no basis to invalidate the chosen specialty, favoring the applicant's position.
From the decision · page 6As the moving party, defendant bears the burden of showing that the specialty chosen by applicant is "is medically or otherwise inappropriate for the disputed medical issue(s)" per AD Rule 31.5(a)(10). (See Lab. Code, § 5705.) There is no evidence in this matter that defendant submitted a request for a replacement QME panel in another specialty to the Medical Director on the basis that the chosen specialty was inappropriate. The record contains no evidence or pleadings filed by defendant regarding why applicant's chosen specialty is inappropriate. In the absence of substantial evidence showing the panel specialty is inappropriate, we discern no basis in the record to conclude that applicant may not be evaluated by a physician in the specialty she requested. (See
Applicant waited the requisite time after defendant's delay letter before requesting the QME panel, complying with statutory timing requirements.
Favours Applicant prevailed
This compliance established the validity of the panel request, leading to the grant of the petition for removal.
From the decision · page 4Defendant sent applicant a delay letter on April 23, 2021 stating that her claim was on delay pending, among other items, a "med-legal examination." Defendant's delay letter thus expressly stated that a medical-legal evaluation was necessary in order to make a decision regarding her claim. Applicant waited the requisite time from mailing of defendant's delay letter before requesting a QME panel from the Medical Unit on May 19, 2021. She therefore properly obtained a QME panel in accordance with sections 4060 and 4062.2.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 4060, 4062.2
Labor Code section 4060 and 4062.2 govern the process for obtaining a QME panel and the timing of requests.
Applicant properly obtained the QME panel by waiting the required time after defendant's delay letter before requesting the panel.
From the decision · page 4Defendant sent applicant a delay letter on April 23, 2021 stating that her claim was on delay pending, among other items, a "med-legal examination." Defendant's delay letter thus expressly stated that a medical-legal evaluation was necessary in order to make a decision regarding her claim. Applicant waited the requisite time from mailing of defendant's delay letter before requesting a QME panel from the Medical Unit on May 19, 2021. She therefore properly obtained a QME panel in accordance with sections 4060 and 4062.2.
Cal. Code Regs., tit. 8, section 31.5(a)(10)
Cal. Code Regs., tit. 8, section 31.5(a)(10) allows the Medical Director to determine if the chosen specialty is medically inappropriate and to request additional information.
No evidence defendant requested a replacement panel specialty; thus, the chosen specialty stands as appropriate.
From the decision · page 6specialty of the medical evaluator." (Lab. Code, § 4062.2(b).) Thus, the party first requesting a QME panel has the legal right to designate the panel specialty pursuant to section 4062.2(b). (See also Cal. Code Regs., tit. 8, § 30.5 ["Medical Director shall utilize in the QME panel selection process the type of specialist(s) indicated by the requestor"].) However, Administrative Director (AD) Rule 31.5(a)(10) allows for a request for a replacement QME panel in a different specialty from the Medical Director as follows:
What proof carried it
The evidence the panel weighed, by kind.
Applicant waited the requisite time from mailing of defendant's delay letter before requesting the QME panel, properly obtaining it under Labor Code sections 4060 and 4062.2.
From the decision · page 4Defendant sent applicant a delay letter on April 23, 2021 stating that her claim was on delay pending, among other items, a "med-legal examination." Defendant's delay letter thus expressly stated that a medical-legal evaluation was necessary in order to make a decision regarding her claim. Applicant waited the requisite time from mailing of defendant's delay letter before requesting a QME panel from the Medical Unit on May 19, 2021. She therefore properly obtained a QME panel in accordance with sections 4060 and 4062.2.
No evidence or pleadings by defendant showed the chosen specialty was inappropriate, and defendant did not request a replacement panel specialty.
From the decision · page 6As the moving party, defendant bears the burden of showing that the specialty chosen by applicant is "is medically or otherwise inappropriate for the disputed medical issue(s)" per AD Rule 31.5(a)(10). (See Lab. Code, § 5705.) There is no evidence in this matter that defendant submitted a request for a replacement QME panel in another specialty to the Medical Director on the basis that the chosen specialty was inappropriate. The record contains no evidence or pleadings filed by defendant regarding why applicant's chosen specialty is inappropriate. In the absence of substantial evidence showing the panel specialty is inappropriate, we discern no basis in the record to conclude that applicant may not be evaluated by a physician in the specialty she requested. (See
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