ADJ17006634 · November 5, 2024

The claim forms were not admitted into evidence, so the Board could not determine if Navarro applied; substantial prejudice or irreparable harm would result if removal was denied; reconsideration was inadequate remedy; thus removal granted and matter returned for further proceedings.

From the decision · page 1Defendant seeks reconsideration, or in the alternative removal, of the July 31, 2024 Findings and Order (F&O) wherein the workers' compensation administrative law judge (WCJ) found that applicant was entitled to proceed with the separate chiropractic Qualified Medical Evaluation (QME) panel for applicant's December 20, 1996 through December 23, 2021 cumulative injury claim to the hands, wrists, arms, knee, and back rather than return to Dr. Jeffrey Schiffman who is currently serving as the orthopedic panel QME for applicant's December 23, 2021 specific injury claim to the head, shoulder, ear, and neck.

Claim forms for the injuries were not admitted into evidence and thus the filing dates could not be established.

Favours Defendant prevailed

Without the claim forms, the Board could not determine if the Navarro rule applied to require a single QME panel.

From the decision · page 6(Cal. Code Regs., tit. 8, § 10803(a).) In the instant case, the claim forms were not submitted as part of applicant's filing of his

Evaluated applicant on December 9, 2022 for the December 23, 2021 specific injury claim to the head, shoulder, ear, and neck.

From the decision · page 2The record does not contain the DWC claim forms for the two injuries. The parties proceeded with discovery and on June 16, 2022, an orthopedic QME panel was obtained for the December 23, 2021 specific injury. Dr. Jeffrey Schiffman was ultimately selected, and applicant was evaluated by Dr. Schiffman on December 9, 2022. (Exhibit A.) On March 17, 2023, applicant requested a separate chiropractic QME panel for the cumulative injury claim. (Exhibit 1.) The medical unit issued panel 7642430 in response. (Exhibit 2.) The matter therefore proceeded to trial on July 29, 2024. Defendant contended that Dr. Schiffman should be the QME to evaluate applicant for the cumulative injury and that a second panel was not proper.

California Labor Code

Labor Code sections 4062.3(j), 4064(a), 5401 regarding claim forms and QME evaluations.

Determines when a QME must address all injuries reported on claim forms filed before the evaluation date.

From the decision · page 5III. Turning now to the merits of the Petition, pursuant to Navarro, the "Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury." (Navarro, supra, 79 Cal. Comp. Cases at p. 420.) However, sections 4062.3(j) and 4064(a) taken together state that a medical evaluation shall address "all medical issues arising from all injuries reported on one or more claim forms." Section 5401 outlines the requirements pertaining to workers' compensation claim forms, and pursuant to this section, an employer must provide a claim form, and the injured worker must file the claim form with the employer. (Id.) Further, "a claim form is deemed filed when it is personally delivered to the employer or received by the employer by first-class or certified mail.

California Code of Regulations, title 8

WCAB Rules 10803(a) and 10945(c) regarding evidentiary record and attachment of documents to petitions.

Documents not admitted into evidence are not part of the record; improper attachments may lead to dismissal or sanctions.

From the decision · page 5A dated copy of the completed form shall [then] be provided by the employer to the employer's insurer and to the employee, dependent, or agent who filed the claim form." (Id.) In keeping with the requirements set forth in sections 4062.3(j) and 4064(a), Navarro clarifies that at the time of an evaluation, the evaluator shall consider all issues arising out of any claims reported before the evaluation, and if several subsequent claims of injury are filed before the evaluation takes place, the evaluator shall also consider those claims. (Navarro, supra, 79 Cal. Comp. Cases at p. 425, emphasis added.) Under Navarro, the date the claim form is filed is the operative act in determining the right to request a new QME panel. If a claim form for an additional injury is filed before the evaluation with the panel QME, then that QME shall remain as the QME for all injuries with submitted claim forms. However, if a claim form for the additional injury is filed after the QME evaluation, the parties may request an additional QME panel. Defendant apparently attached the claim forms to its Petition and its July 11, 2024 Points and Authorities. Attachment of the documents, however, does not equate to entry of said documents into the evidentiary record. WCAB Rule 10803(a) states that: (a) The Workers' Compensation Appeals Board's adjudication file shall consist of:

Appeals Board en banc

Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 (Appeals Board en banc) on QME panel assignment for multiple claims.

If multiple claim forms are filed before a QME evaluation, the same QME must address all injuries; if filed after, separate panels may be requested.

From the decision · page 1Defendant contends that pursuant to Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 (Appeals Board en banc), when claim forms for multiple injuries are filed before a QME exam takes place, those claims should be addressed by the same QME. Defendant argues that both the specific and the cumulative injury claims were filed before the QME exam. As such, applicant has no right to a separate QME panel for the cumulative injury.

Claim forms for the injuries were not admitted into evidence, preventing determination of filing dates relevant to QME panel assignment.

From the decision · page 6(Cal. Code Regs., tit. 8, § 10803(a).) In the instant case, the claim forms were not submitted as part of applicant's filing of his