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September 2016

THE LEGAL WAY TO GET ADDITIONAL QME PANELS

Attorneys for injured workers sometimes claim that as a consequence of the industrial injury, the worker has developed additional problems such as weight gain, diminished sexual desire, sleep apnea, psychological difficulties, or heart conditions. To prove these claims, the attorney needs additional QME panels in the appropriate medical fields. Contrary to popular belief, simply amending the application does not meet the requirements to get more panels, as held by two 2015 Panel Decisions. 

In Morales v. Robert Half International, a Panel noted that Labor Code section 4062(a) requires that “Before Applicant can request the assignment of a QME panel(s), there must be a determination made by a treating physician and an objection by either party thereto.” Labor Code section 4062(a) requires that the objection be made within 20 days of receipt of the report when an applicant is represented by an attorney, or 30 days if the applicant is not represented by an attorney.

The objection must also be based on the factual content of the report. In Martinez v. Santa Clarita Community College District, commissioners Zalewski, Sweeney, and Caplane ruled that an applicant’s request for multiple panels in the fields of internal and psychiatric medicine were premature, partly because the medical report the applicant objected to made no reference “to any alleged internal or psychiatric injuries or complaints.”

But what about CCR section 31.7, which allows the Medical Director or a Judge to order additional panels on a showing of good cause? In California Restaurant Association v. Clark, our state Supreme Court held that “an administrative agency may not, under the guise of its rule making power, abridge or enlarge its authority or exceed the powers given to it by the statute, the source of its power.” If the power to order more panels is not allowed by the Labor Code, then the regulations cannot step beyond that power.

Some argue that Labor Code section 4601(a) allows a Judge to order additional panels because it states in part that “The employee is entitled, in any serious case, upon request, to the services of a consulting physician, chiropractor, or acupuncturist of his or her choice at the expense of the employer. The treatment shall be at the expense of the employer.” Did you notice the word “treatment” in the last sentence, or that section 4601 is in the treatment sections of the Code, not the med-legal? 

The Panel in Rollins v. John Martin Stables, Inc., 2011, did notice and held that Labor Code § 4601 cannot be used to obtain to obtain additional PQME panels, as it relates only to consultations for treatment.

Take-away: before you consent to additional panels, make sure that (1) there was a timely objection to a treating report, and (2) that the treating report really did have a meaningful discussion of alleged injuries in the fields in which the applicant wants an additional panel.

by Richard Berryhill, Esq., Schmit Law Offices

 

VOCATIONAL EXPERT: SIDE EFFECTS OF COMMON PAIN MEDICATIONS MAY RENDER EMPLOYEE UNACCEPTABLE TO PROSPECTIVE EMPLOYERS

The WCAB recently issued a somewhat disturbing opinion which allowed further development of the medical and vocational records to investigate the effects of pain medications on an applicant’s work restrictions and ability to compete in the open labor market. This would potentially allow every applicant with an orthopedic claim to pursue an increased award under the Le Boeuf or Ogilvie cases.

Branham v. Arroyo Grande Glass involved an applicant who sustained an industrial back injury rated at 51% permanent disability. On reopening, he claimed that his back injury caused him to develop diabetes, injuries to his eyes, and to his gastrointestinal system. His overall permanent disability rated 63% under the 1997 PDRS.

But he also contended that he was 100% disabled based on his vocational expert’s opinion that the use of Norco and Gabapentin might “compromise [his] cognitive functioning to an extent unacceptable to prospective employers” and that the side effects of Norco are “far-reaching in terms of limiting opportunities for [applicant] to capably function in any capacity.” (Emphasis added)

This is disturbing because no medical evaluator or treating physician had suggested that he suffered from such cognitive side-effects. One doctor even noted that the applicant was able to take care of his house, drive his own car, perform light housekeeping and grocery shopping, and take care of his own hygiene.

The Panel, however, was sufficiently persuaded by the evidence of applicant’s long-standing use of pain-killing medications and the opinion of the vocational expert that the case was returned to the trial level for further development of the record.
 
This case is particularly concerning because the Panel put so much emphasis on the novel opinions of the vocational expert that Norco and/or Gabapentin caused debilitating cognitive impairment resulting in total disability, despite the lack of supporting medical evidence of impairment.

The success of the vocational expert’s opinions will ultimately hinge on whether the doctors agree with him.

At Schmit Law Office, we continue to believe that the best way to defend against such novel arguments is to write strong, persuasive advocacy letters to carefully-selected medical evaluators.

by Lisa Omoto, Esq., Schmit Law Offices

 


 

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