With today’s online Panel Qualified Medical Evaluator request system, it is often a race to be the party to designate the panel specialty. All too often the fate of a case hinges on the click of a submittal button. Despite defendants’ best efforts, there are times where applicant’s counsel is able to secure the specialty of their choice, which, undoubtedly, is the obligatory chiropractic or pain management panel specialty.
So, what can defendant do if, and when, opposing counsel secures a panel in a specialty defendant deems to be inappropriate? Typically, in addition to advising applicant’s counsel of your objection, defendant would send correspondence to the Medical Unit advising of your objection and requesting a replacement panel pursuant to California Code of Regulations section 31.5. Then, customarily, the Medical Unit will defer the decision to the Workers’ Compensation Appeals Board.
However, as we all know, and even more so now during these times of uncertainty, awaiting a response from the Medical Unit can significantly delay your claim. So, what can we do to ensure our case continues to progress towards resolution?
Although not deemed a significant panel decision, we do have some new guidance from the noteworthy panel decision in the case of Ronald Porcello. (Porcello v. State of California, Department of Corrections and Rehabilitation, 2020 Cal. Wrk. Comp. P.D. LEXIS 9, 85 Cal. Comp. Cases 327; highlighted as a noteworthy panel decision in the California WCAB Noteworthy Panel Decision Report, Vol. 11, No. 6, June 2020.)
In Porcello, applicant’s counsel obtained two chiropractic panels, to which defendant advised of their objection, and in an abundance of caution, also made a strike to preserve its right to do so. Defendant then wrote to the Medical Unit on October 3, 2019, and asserted that pain medicine was the appropriate specialty and also requested, pursuant to California Code of Regulations section 31.5(a)(9)-(10), that a replacement panel should be issued. Applicant’s attorney submitted an opposition to the Medical Unit five days later, and the matter then proceeded to Expedited Hearing on October 15, 2019. As of the day of the hearing, the Medical Unit had not responded.
The workers’ compensation judge eventually issued a Finding and Order, inter alia, that defendant’s dispute regarding the panel specialty was premature for decision by the Appeals Board “as the Medical Unit has not had sufficient time to respond to Defendant’s objections and make a determination, which could be appealed by the Appels Board.” The parties were ordered to await the Medical Unit’s determination and could only return to the workers’ compensation judge to adjudicate the issue “if the Medical Unit does not make a determination on the issue within a reasonable time frame”.
Defendant subsequently filed a Petition for Reconsideration. In additional to other items, the Workers’ Compensation Appeals Board rescinded the Finding and Order issued by the workers’ compensation judge and returned the matter to the trial level for the judge to address the panel specialty dispute, without a need to await the Medical Unit’s determination.
The decision then chronicles the legal authority of a party to request a panel, submit an objection to the Medical Unit, and the ultimate right to appeal the decision of the Medical Unit. More specifically, the Workers’ Compensation Appeals Board held that a party may request a panel in another specialty from the Medical Director per Rule 31.5(a)(10) and the Medical Director’s determination regarding the specialty may be appealed to a workers’ compensation judge per Rule 31.1(b). The right of a party to appeal the Medical Director’s determination is consistent with the parties’ right to due process in workers’ compensation proceedings. (See Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal. Comp. Cases 805].) The Workers’ Compensation Appeals Board reasoned that nothing in the Labor Code precludes a party from submitting a panel specialty dispute to a workers’ compensation judge prior to or instead of submitting the dispute to the Medical Director, and a workers’ compensation judge may address this dispute pursuant to the adjudicatory authority outlined in the discussion above. To the extent of the prior Portner v. Costco case, which indicates a party must first submit a panel specialty dispute to the Medical Director before submitting the dispute to a workers’ compensation judge, the Workers’ Compensation Appeals Board expressly disagreed with its analysis.
Chair Katherin Zalewski provided a concurring opinion, which went on to further note the prior holding in Portner does not comport with the analysis of the present matter, Porcello, and she now disagrees with it and concludes the determination in Portner is inconsistent with the authority expressly vested in the Appeals Board by the Labor Code.
So, what does it all mean? Practically speaking, in addition to submitting an objection to the Medical Unit with a request for your desired panel, a zealous practitioner should also bring the matter before the Appeals Board as expeditiously as possible in order for a determination on the panel specialty issue to be adjudicated and the case brought closer to resolution. This should be an additional path to assist defendants in circumventing further delay in a case based on a panel specialty dispute and awaiting a response from the Medical Unit, which often times takes months.
Here at Yrulegui & Roberts we strive to find every avenue available to expeditiously and equitably navigate your claim to resolution. If you have questions about panel disputes, or any other issue for that matter, we are here to help. To set up a confidential review of your case, please contact our law firm today. With offices in Fresno, Bakersfield, and Sacramento, we are well-positioned to represent our clients throughout the region.