ADJ15599962 · November 26, 2024

The Appeals Board found that the preponderance of evidence supports continuing the use of IMEs as mandated by the ADR agreement, rescinding the WCJ's contrary findings and rejecting the argument that it would be unjust to enforce the ADR provisions regarding IMEs.

From the decision · page 9In this matter, it is true that applicant continued to conduct discovery with his IME after the termination of the ADR agreement. (Exhibit H, Invoice, May 15, 2021; Exhibit I, Report of Eduardo Lin, July 14, 2021; Exhibit S, Medical Cover Letter, July 13, 2021, Exhibit T, Notice of Deposition, April 26, 2021.) [...] In light of the overall record as described above, we are persuaded that the preponderance of evidence establishes that the parties in this case must continue using IMEs as mandated by the ADR agreement. We will amend the Findings of Fact dated April 21, 2022 to rescind the WCJ's findings that that defendant waived the argument that the IME process described in the ADR agreement controls the medical-legal process herein, and that special circumstances exist that render it unjust to enforce the provisions of the ADR contract regarding the usage of IMEs. We will replace those findings with our findings to the contrary, and we will add our own finding that resolves the issue presented at trial, i.e., the parties shall continue using IMEs pursuant to the ADR agreement.

Applicant continued to conduct discovery with his IME after the termination of the ADR agreement, including obtaining supplemental reports and setting depositions.

Favours Applicant prevailed

This demonstrated the parties' ongoing reliance on IMEs, supporting the continuation of the ADR agreement's medical-legal process.

From the decision · page 5Between April 17, 2021 and November 5, 2021, applicant had obtained a supplemental report from Dr. Lin and set his deposition. (Exhibit H, Invoice, May 15, 2021; Exhibit I, Report of Eduardo Lin, July 14, 2021; Exhibit S, Medical Cover Letter, July 13, 2021, Exhibit T, Notice of Deposition, April 26, 2021.)

Applicant sustained an industrial injury to his neck and low back on June 10, 2017, and claims injury to his hips.

Favours Applicant prevailed

This established the threshold issue of injury arising out of employment, supporting the WCAB's jurisdiction and findings.

From the decision · page 1In the Findings of Fact dated April 21, 2022, the Workers' Compensation Administrative Law Judge ("WCJ") found that applicant, while employed as a police officer by the City of Richmond ("defendant") on June 10, 2017, sustained industrial injury to his neck and low back, and that applicant claims injury to his hips. The WCJ also found that defendant waived the argument that the Independent Medical Evaluation ("IME") process described in the Alternative Dispute Resolution ("ADR") agreement controls the medical-legal process herein, and that special circumstances exist that render it unjust to enforce the provisions of the ADR contract regarding the usage of IMEs.

Defendant's claims adjuster sent letters to unrepresented injured workers advising them to obtain QMEs and not to use IMEs after April 17, 2021, but did not send such letters to represented workers, assuming attorneys would resolve the medical-legal procedure.

Favours Applicant prevailed

This showed defendant's inconsistent approach and supported continuing IMEs under the ADR agreement for represented workers like applicant.

From the decision · page 5Applicant called Tamala Palmer as a witness, and as relevant herein, she testified that: She began handling claims for defendant on April 19, 2021, a few days after the carve out program ended. She is not that familiar with the carve out program. She believes that after April 17, 2021, the Independent Medical Review (IMR) process governs any medical dispute that may arise. She sent letters to unrepresented injured workers with dates of injury after April 17, 2021 advising them that the ADR program was no longer in effect, that they had to obtain QMEs, and that they could not return to their IMEs. Exhibit 1 is an example of such a letter. She did not recall sending that letter to represented injured workers. Upon review of Exhibit R, she recalled a letter sent to applicant advising him that jurisdiction over his claim had transferred to the WCAB. An unrepresented injured worker with an older injury who had already been evaluated by IMEs pursuant to the ADR contract would be instructed to obtain a QME. It is possible that an employee with injury after April 17, 2021 would not know about the end of the ADR program until November. She did not send letters to represented injured workers instructing them to obtain QMEs because she assumed that attorneys would work out the medical- legal procedure.

Issued multiple reports as the applicant's PIME.

From the decision · page 4Applicant selected Dr. Eduardo Lin to act as the PIME, and Dr. Lin issued multiple reports in that capacity. (Exhibits I through O, Reports of Eduardo Lin, M.D., various.) Defendant selected Dr. Robert Henrichsen to act as the DIME, and Dr. Henrichsen issued multiple reports. (Exhibits D through F, Reports of Robert Henrichsen, M.D., various.)

Issued multiple reports as the defendant's DIME.

From the decision · page 4Applicant selected Dr. Eduardo Lin to act as the PIME, and Dr. Lin issued multiple reports in that capacity. (Exhibits I through O, Reports of Eduardo Lin, M.D., various.) Defendant selected Dr. Robert Henrichsen to act as the DIME, and Dr. Henrichsen issued multiple reports. (Exhibits D through F, Reports of Robert Henrichsen, M.D., various.)

Labor Code section 3202.5

Preponderance of evidence standard applies to the issue of whether parties must continue with IMEs.

The Appeals Board applied this standard to evaluate the evidence on continued use of IMEs.

From the decision · page 6parties must continue with IMEs, the standard of proof is the preponderance of evidence standard.

Defendant's claims adjuster sent letters to unrepresented injured workers advising them to obtain QMEs and not to use IMEs after April 17, 2021, but did not send such letters to represented workers, assuming attorneys would resolve the medical-legal procedure.

From the decision · page 5Applicant called Tamala Palmer as a witness, and as relevant herein, she testified that: She began handling claims for defendant on April 19, 2021, a few days after the carve out program ended. She is not that familiar with the carve out program. She believes that after April 17, 2021, the Independent Medical Review (IMR) process governs any medical dispute that may arise. She sent letters to unrepresented injured workers with dates of injury after April 17, 2021 advising them that the ADR program was no longer in effect, that they had to obtain QMEs, and that they could not return to their IMEs. Exhibit 1 is an example of such a letter. She did not recall sending that letter to represented injured workers. Upon review of Exhibit R, she recalled a letter sent to applicant advising him that jurisdiction over his claim had transferred to the WCAB. An unrepresented injured worker with an older injury who had already been evaluated by IMEs pursuant to the ADR contract would be instructed to obtain a QME. It is possible that an employee with injury after April 17, 2021 would not know about the end of the ADR program until November. She did not send letters to represented injured workers instructing them to obtain QMEs because she assumed that attorneys would work out the medical- legal procedure.

Applicant continued to conduct discovery with his IME after the termination of the ADR agreement, including obtaining supplemental reports and setting depositions.

From the decision · page 5Between April 17, 2021 and November 5, 2021, applicant had obtained a supplemental report from Dr. Lin and set his deposition. (Exhibit H, Invoice, May 15, 2021; Exhibit I, Report of Eduardo Lin, July 14, 2021; Exhibit S, Medical Cover Letter, July 13, 2021, Exhibit T, Notice of Deposition, April 26, 2021.)