What the panel ordered
The Appeals Board affirmed the Findings of Fact, Order and Opinion on Decision issued by the WCJ on October 8, 2021, denying applicant's petition for removal and holding that defendant was not precluded from requesting a new QME panel.
Applicant sought removal of the Findings of Fact, Order and Opinion on Decision issued by the WCJ on October 8, 2021, challenging interlocutory finding regarding defendant's right to request a new QME panel. The WCJ issued a Report and Recommendation to deny removal. The Appeals Board granted reconsideration to study the issues further.
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 held that defendant was not precluded from requesting a new QME panel because no examination was actually conducted due to lack of interpreter, so defendant was entitled to request a new panel under Romero.
From the decision · page 1Applicant sought removal of the Findings of Fact, Order and Opinion on Decision (F&O) issued by the workers' compensation administrative law judge (WCJ) on October 8, 2021. By the F&O, the WCJ found in relevant part that defendant was not precluded from requesting a qualified medical evaluator (QME) panel per Labor Code1 section 4062.2 when applicant became represented. (Lab. Code, § 4062.2.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not complete any examination with the QME due to lack of interpreter at two appointments.
Favours Defendant prevailed
Because no examination was conducted, defendant was entitled to request a new QME panel under Romero.
From the decision · page 1Applicant contends that she participated in the examination with the first QME to the extent that she could due to a lack of an interpreter being present. She also contends that defendant waived its right to request a QME panel by participating in the first two appointments with the first QME.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824
An employee has 'received' a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination.
The Board applied this standard to determine that no examination was conducted because the applicant did not participate due to lack of interpreter, so defendant could request a new QME panel.
From the decision · page 3we decline to engender ambiguity regarding what constitutes "participating" in an examination. Pursuant to Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824, 825, "for purposes of sections 4062.1(e) and 4062.2(e) [....] an employee has `received' a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination." In this matter, applicant attempted to participate in an examination with the QME at two appointments, but was unable to participate in an examination due to the lack of an interpreter. No examination was actually conducted by the QME and defendant was thus entitled to request a new panel per Romero.
What proof carried it
The evidence the panel weighed, by kind.
Applicant attempted to participate in two QME appointments but no examination was conducted due to lack of interpreter.
From the decision · page 1Applicant contends that she participated in the examination with the first QME to the extent that she could due to a lack of an interpreter being present. She also contends that defendant waived its right to request a QME panel by participating in the first two appointments with the first QME.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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