By Nicole D. Rothford
Panel disputes seem to be the new wave of litigation at the WCAB in the workers’ compensation arena, but a significant panel decision that is resulting in new issues for litigation, is not a new decision.
In fact, the 2006 case of Nelly Romero v. Costco Wholesale, PSI, 72 CCC 824; 2007 Cal. Wrk. Comp. LEXIS 168, defendant sought removal from the WCAB’s Order finding the prior Qualified Medical Examination Panel, which consisted of three doctors in the specialty of orthopedic surgery, was now inappropriate to resolve the parties’ dispute over medical treatment. The workers’ compensation judge granted applicant’s attorney’s request for a replacement panel. In Romero, the applicant was unrepresented at the time the original panel was issued by the Medical Unit, and later became represented resulting in her attorney’s request for a replacement panel, but in a different specialty.
Applicant’s attorney wanted a panel of chiropractors and first requested the Medical Unit issue a replacement panel in this different specialty, which was rejected. Applicant’s attorney proceeded to the WCAB. The WCJ granted the request for the replacement panel, and the commissioners on removal upheld the WCJ’s Order for the replacement panel in chiropractic.
It is unclear why this case is now being asserted by applicants’ attorneys, but they are successful in requesting a replacement panel and only providing justification by citing the Romero decision in their request. The Medical Unit then issues a replacement panel in the specialty designated by applicant’s attorney, assuming the applicant has not attended an evaluation with any of the physicians on the unrepresented panel list.
The commissioners in Romero focused on Labor Code sections 4062.1(e) and 4062.2(e), explaining that an applicant has been deemed to have “received” a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator’s examination. The commissioners provided further reasoning that because the applicant never attended and participated in an examination by any physician on the unrepresented panel, they would not disturb the WCJ’s Order for the replacement panel in a different specialty. However, there was no analysis, discussion or statute cited in the Romero decision that would allow a panel in a completely different specialty to issue. The commissioners ignored the issue which is being asserted in this particular case.
The main concern is a defendant can request an unrepresented panel, follow all the rules in allowing applicant to select a physician from that list, and schedule the evaluation. However, should applicant decide at any time prior to that evaluation to obtain representation, defendant runs the risk of applicant’s attorney requesting a replacement panel in whatever specialty they so wish (we all know it will be chiropractic, pain medicine or physical medicine and rehabilitation). So what is one to do?
There are two potential remedies I recommend. I recommend both options be taken simultaneously.
One option would be to immediately file a Declaration of Readiness to Proceed to the WCAB to decide the validity of the replacement panel request and whether the unrepresented panel or the new replacement panel controls. If you pursue this option, you are asserting the Romero decision is not applicable to your case and is not controlling. California Code of Regulations section 31.1 governs disputes regarding the validity of panel requests stating such disputes shall be resolved by the WCAB.
The second option to be completed concurrently with filing a Declaration of Readiness to Proceed, is to appeal the specialty of the replacement panel requested by applicant’s attorney. Objection to the specialty designated by a party in a panel request is controlled by California Code of Regulations section 31.5(a)(10). Objection to the specialty is appealed to the Medical Director and must be done immediately, as waiting too long to object could be considered a waiver of any objection to the replacement panel and the designated specialty therein.
It is important to remember the Romero decision is only a significant panel decision and thus, is not binding on the WCJ. Simultaneously pursuing both options will provide the best strategy to prevail in any panel dispute.