Because the final report of a Panel QME is so important to the outcome of a workers compensation case, the amount of litigation concerning selection of the Panel QME is astounding. Labor Code Section 4602.2 outlines the rules for obtaining a Panel QME. Either party, applicant or carrier, can request a Panel QME.
Under Labor Code Section 4060 the claim must be denied. If any body part is accepted, then LC 4060 does not apply and you cannot request a Panel QME under this labor code.
Under Labor Code Section 4061 the issue is Permanent Disability. A party is requesting a panel QME to better define the nature and scope of Permanent Disability, which ultimately determines how much money an applicant receives.
Under Labor Code Section 4062 just about every issue is considered, TTD, PD, nature and extent, jurisdiction, Statute of Limitatations, and so on. It is significant that the person who first requests a Panel QME gets to select the specialty. This is often litigated because different specialties see injuries in different ways.
In some cases you can rely on a primary treating physician providing a comprehensive PR-4 medical report. In the past Kaiser had a standard form for such reporting. In fact, I have actually found myself stepping into cases where the primary treating physicians helped the applicant obtain a Panel QME, but this is always with unrepresented cases. When an attorney picks up representation in an unrepresented case, a new Panel QME list can be requested, IF THE APPLICANT HAS NOT ACTUALLY BEEN TO A QME APPOINTMENT. If there is already a Panel QME report, then the QME cannot be changed unless there is a significant delays with reporting.
Once a Panel QME is requested, the Industrial Medical Counsel will issue a list of three prospective Panel QME in the specialty requested. Each side gets to strike one doctor. If you get two applicant friendly doctors on the panel list, defendants are going to search for a reason to disqualify the panel and request another. Unfortunately, with the current scheme nobody actually selects a physician, but gets stuck with the last doctor on the list. This can have devastating consequences, especially if the doctor cannot write a decent report or does not understand fully California workers compensation. For example, Permanent Disability is defined by reference to the AMA Guides for the Evaluation of Permanent Disability, published in 2001. It consists of 18 chapters with each chapter addressing a different body part. For the lumbar spine Chapter 15 is used. For shoulders and upper extremities Chapter 16 is used, and perhaps the most difficult Chapter (14) address behavioral issues, for example changes in behavior related to pain. It can get messy fast, so if you have a psyche or mental issue, get representation early. Case law says a physician can use any part of the guides in determining Permanent Disability based upon clinical experience. However, in practice most Panel QME will not issue an alternative rating unless requested. Their job is to provide the most accurate rating. Sometimes this cannot be done with a standard rating. Further, it is safer and easier to just use a chart or DRE rating. Quick and simple but sometimes inadequate.
The litigation. In Peter Luckhardt v. City of Tracy, 2019 Cal. Wrk. Comp. P.D. LEXIS 146 the WCAB once again upheld an injured workers right to obtain a new Panel QME after becoming represented. Mr. Luckhardt represented himself and went through the Panel QME process for an unrepresented applicant. He selected an orthopedist QME to conduct his evaluation. Subsequently, he obtained representation and his attorney requested a new Panel List in pain management from the Industrial Medical Counsel. Defendants challenged the applicant’s right to obtain a QME in a new specialty. The WCAB reasoned that, as party submitting a qualified medical evaluator panel request, Luckhardt had the right to designate a panel specialty pursuant to Labor Code Section 4062.1(e), and he was not precluded from choosing different specialty than orthopedics because Luckhardt’s request was for new panel rather than replacement panel. In other words, because he was not requesting a replacement Panel, but a new Panel QME list, Luckhardt was not obligated to comply with regulations governing replacement panel requests and could ask for a physician in a different specialty
In Messele v. Pitco Foods, Inc. the appeals board developed the “Mail Box” Rule. It extends the time a party needs to strike a Panel QME doctor by five (5) days in California, 10 calendar days for an address outside of California but within the United States, and 20 calendar days for service to an address outside the U.S. Yes, you can get treatment in a comp case outside the US, but the doctor still needs to report using California protocols and must accept California pay scales.
In sum, the Panel QME process is important. If you have questions, contact an attorney right away. Each case is different, so answers are not easily found.