Applicant did not attend the scheduled QME examination with Dr. Wiggins on May 8, 2019, but this failure was due to applicant's reconsideration and belief that the appointment was cancelled by defendant.
Favours neutral
This fact was central to the WCA's denial of the QME examination but was reconsidered by the Appeals Board as not justifying denial under the ADR rules.
From the decision · page 2I.
PROCEDURAL HISTORY
Applicant, while employed by defendant, claims to have sustained injury arising out of and
in the course of his employment (AOE/COE) on September 6, 2018 to his back, chest, neck and
head. Defendant denied the industrial injury on February 8, 2019, and claimed the affirmative
defense of post-termination per Labor Code1 section 3600(a)(10).
Applicant was a member of the National Electrical Contractors Association (NECA) and
the Local Union of the International Brotherhood of Electrical Workers (IBEW). A collective
bargaining agreement, as authorized by section 3201.5, was in effect for those employees who
sustained injuries during their employment with an employer in California. Pursuant to the Rules
of the NECA/IBEW Workers' Compensation Trust Alternative Disputes Resolution Program (the
ADR Program), after applicant claimed injury, he was provided with an occupational medicine
QME panel which included Peter Yip, M.D., David Suchard, M.D., and Patricia Wiggins, M.D.
Applicant scheduled an examination with Dr.
The ADR rules Section 48 Article 13 do not set forth forfeiture of the right to a QME examination for failure to attend an appointment, and the WCA's reliance on this rule to deny the examination was erroneous.
Favours Applicant prevailed
This legal interpretation led the Appeals Board to rescind the WCA's order and return the matter for further proceedings.
From the decision · page 5Petitioner is correct that the aforementioned section relied upon by the WCA in denying
Due process requires the Appeals Board to provide a meaningful consideration of the merits and protect the rights of persons seeking reconsideration, which supports allowing the applicant a QME examination to rebut the carrier's denial.
Favours Applicant prevailed
This constitutional requirement influenced the Appeals Board's decision to rescind and remand for further proceedings.
From the decision · page 8The Appeals Board's constitutional requirement to accomplish substantial justice
means that the Appeals Board must protect the due process rights of every person seeking
reconsideration. (See San Bernardino Cmty. Hosp. v. WorkersComp. Appeals Bd. (1999)
74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] ["essence of due process is... notice
and the opportunity to be heard"]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5
Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) In fact, "a denial of due process renders
the appeals board's decision unreasonable..." and therefore vulnerable to a writ of review.
(Von Ritzhoff, supra, 233 Cal.App.4th at p. 985 citing Lab. Code, § 5952(a), (c).) Thus,
due process requires a meaningful consideration of the merits of every case de novo with a
well- reasoned decision based on the evidentiary record and the relevant law.