ADJ15870256 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; August 24, 2022 Amended Findings of Fact and Order affirmed except amended to find QME panel no. 2839682 valid and rescinding order to obtain new QME panel.

Petition for Reconsideration of the August 24, 2022 Amended Findings of Fact and Order granted to review validity of QME panel and procedural correctness of QME panel request after applicant obtained legal representation.

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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.

QME/AME processApplicant prevailedleft knee

The parties had completed the procedural steps to obtain a valid QME panel while applicant was unrepresented, and applicant's request for a new panel after retaining counsel was proper under Labor Code section 4062.2 and Romero precedent. The WCJ's invalidation of the panel was reversed as it would cause significant prejudice or irreparable harm.

From the decision · page 1Applicant seeks removal from the August 24, 2022 Amended Findings of Fact and Order (F&O) wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a respiratory therapist on October 24, 2021, sustained industrial injury to left knee. The WCJ found, in relevant part, that applicant's QME panel was invalid, and that the parties were required to start the panel QME selection process anew.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code sections 4061, 4062, 4062.1, 4062.2

Governs the procedure for obtaining and objecting to QME panels and the rights of represented and unrepresented applicants.

From the decision · page 4Once the parties have identified a medical dispute, the procedure for obtaining a panel of QMEs where applicant is not represented is governed by section 4062.1, which provides in pertinent part:

CA-WCAB Significant Panel Decision

Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824

Established that an unrepresented applicant who has not received a QME evaluation may request a new QME panel after obtaining legal representation without restarting the entire QME process.

From the decision · page 5In the significant panel decision Romero, the unrepresented applicant's treating physician issued a report recommending physical therapy, to which defendant objected.2 Pursuant to section

CA-WCAB Panel Decision

City of Tracy v. Workers' Comp. Appeals Bd. (Luckhardt) (2019) 84 Cal.Comp.Cases 838

Confirmed that an applicant who obtained a QME panel while unrepresented but had not received a QME evaluation is entitled to a new panel after retaining counsel.

From the decision · page 6Similarly, in City of Tracy v. Workers' Comp. Appeals Bd. (Luckhardt) (2019) 84 Cal.Comp.Cases 838 [2019 Cal. Wrk. Comp. LEXIS 73] (Luckhardt), the parties satisfied the prerequisites to obtaining a QME panel in orthopedic surgery while applicant was unrepresented. Following issuance of the panel, but prior to any QME evaluation, applicant retained counsel. Applicant's counsel then requested and received a new panel of QMEs in pain management, pursuant to Romero. We affirmed the WCJ's determination that while the parties had completed the process necessary to obtaining a QME while applicant was unrepresented, the applicant had not yet received a comprehensive medical-legal evaluation by a QME, and was thus entitled to a new panel of QMEs under section 4062.2. (Id. at 840-841.)

ADJ15870256 · May 23, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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