RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – ROUTES FOR RESOLVING PQME DISPUTES AND AN UNEXPECTED ASSIST

FROM MY BAR AT HOME:

The Zoom invite from my friends for “Ladies’ W(h)ine Time” sat in my inbox, staring at me and making me feel guilty. I did not want to attend. I have become fatigued with the idea of yet another virtual happy hour. I love my friends but I am tired of seeing their beautiful faces through a screen. I was even less in the mood to pretend to be cheerful, because on top of it all I was worried about an obnoxious replacement Panel Qualified Medical Examiner (PQME) issue that was set for a mandatory settlement conference (MSC) the next morning.

In my case, the applicant claimed to have radicular symptoms and was treating with an orthopedist who recommended surgery. Applicant’s counsel requested a panel of QMEs in chiropractic medicine. Since it did not seem that a chiropractor would be the appropriate specialty, I objected to the panel and requested an MSC to pursue a replacement panel in orthopedics.

With the hearing approaching, I contacted the applicant’s attorney, the infamous Ron Summers, so that we could circulate the pre-trial conference statement ahead of time as is our current best practice with remote hearings. He told me that he would be objecting to the case being set for trial because I had not yet asked the Medical Unit to comment on the specialty issue under Administrative Director Rule (AD Rule) 31.5(a)(10). AD Rule 31.5(a)(10) allows the Medical Unit to issue a replacement panel if the specialty initially issued is deemed inappropriate upon a written request by one of the parties with supporting documentation, including the Doctor’s First Report and the most recent PR-2 or narrative report.

Ron, via a smugly-worded email, referred me to the panel case published on October 6, 2016, one Robin Portner v. Costco, Liberty Mut. Ins. Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 499. The Workers’ Compensation Appeals Board (WCAB) in this case held that it is premature to take a specialty dispute to the Workers’ Compensation Judge (WCJ) before the Medical Director has commented upon the issue.

In their holding the Appeals Board cited Rule 31.1(b), which reads:

Disputes regarding the appropriateness of the specialty designated shall be resolved pursuant to section 31.5(a)(10) of Title 8 of the California Code of Regulations. Either party may appeal the Medical Director’s decision as to the appropriateness of the specialty to a Workers’ Compensation Administrative Law Judge.

Although the Appeals Board commended the effort of the parties to resolve the panel dispute quickly, in their holding they emphasized the use of the word “shall” in directing the parties to resolve the issue by proceeding to the Medical Director, and held that it was a necessary first step.

I had bypassed going to the Medical Unit because in mid-March when the dispute came up, the Medical Unit was operating in very limited capacity and it was not certain when they would be processing replacement panel requests due to the COVID-19 pandemic. Ultimately, I knew that Ron and I would disagree no matter how the Medical Unit responded, so I filed the Declaration of Readiness to Proceed in the hope of getting the panel issue resolved as quickly as possible, given that the parties needed a valid medical-legal opinion right away.

Since then the Medical Unit had reopened and began addressing requests for replacement panels, so I was concerned that the judge would agree with Ron. If we were directed to return to the Medical Unit, resolution of the issue would surely be slowed, particularly since Ron and I were unlikely to be satisfied with the response and would ultimately end up at a hearing anyhow.

I opted to decline the Zoom invite from the girls and told my friends I had to work. But really I intended to nurse my frustrations with a solo happy hour and then fall asleep on the couch watching Burt Lancaster movies.

I put on my comfiest comfy pants and moseyed into the kitchen to prepare my favorite vice – a Manhattan, straight up with two cherries.1 I was preparing the cocktail shaker when I noticed the jar of Luxardo cherries was nothing but juice. Of course!

Determined to have my perfect cocktail with both cherries, I masked up and headed to the local market. When I wandered into the booze aisle I was absolutely delighted to set eyes on your friend and mine, Mr. Joe Truce! At first I wasn’t certain it was him. He was wearing a mask decorated with the scales of justice and his hair was decidedly shaggier than the last time I had seen him. But when I saw him reach for a bottle of Beefeater’s gin, I knew it had to be Joe. I offered an enthusiastic hello.

After some socially-distanced chitchat about our respective lives in isolation, the upcoming Perry Mason mini-series reboot (Joe was skeptical of its ability to improve on the original but was willing to give it a chance) and offering recommendations for local takeout, the conversation of course made its way to Joe’s favorite topic – the practice of workers’ compensation. I told Joe about my morning hearing and my frustration that I may have to take an extra step before being set for trial, even though that is likely where Ron and I would end up months from now.

Joe’s eyes lit up and it almost seemed as if the scales on his mask started to glow. He reached into his magic briefcase (never leave home without it!) and provided me with a copy of the panel decision Ronald Porcello v. State of California, Department of Corrections and Rehabilitation, 2020 Cal. Wrk. Comp. P.D. LEXIS 9; 85 Cal. Comp. Cases 327, which issued on January 21, 2020.2

In Porcello, the applicant alleged three dates of injury while working as a corrections officer. Applicant’s counsel requested and obtained two panels of QMEs in chiropractic medicine, one each for two of the three dates of injury. Defendant wrote to applicant’s attorney to object to the panels, asserting the parties had already agreed to a medical-legal physician. Defendant also wrote to the Medical Unit to request replacement panels in pain medicine pursuant to AD Rule 31.5(a)(10), which they asserted would be the appropriate specialty to comment upon the applicant’s complaints.

Before the Medical Unit responded to the request for replacement panels, the matter proceeded to an expedited hearing. At that hearing, the parties went forward on the issue of whether or not the applicant had already agreed to proceed with a separate physician as a QME, and if not whether replacement panels should issue in pain medicine.

The WCJ issued a Findings and Opinion, deferring comment on the panel QME specialty issue pending a determination of the Medical Unit, relying on Portner. Defendant then filed for reconsideration.

In the resulting panel decision, the Appeals Board disagreed that the litigation of the specialty issue was premature and remanded the matter to the trial level for a finding as to the appropriate panel specialty.

In their discussion the Appeals Board acknowledged but disagreed with the holding in Portner and the language of AD Rule 31.1(b) instructing that disputes over the appropriateness of the panel specialty “shall be resolved pursuant to section 31.5(a)(10).” Instead, they went on to focus on the Appeals Board’s broad jurisdictional powers and their delegation of those powers to the WCJ under the California Labor Code.

In particular, the Appeals Board stated that the WCJ has jurisdiction to hear and decide discovery disputes, “…which includes determining the appropriate panel specialty to address the disputed medical issues in a case.” Since nothing in the Labor Code bars the parties from taking their panel dispute directly to the WCJ before going to the Medical Director and the WCJ is empowered to resolve that dispute, the Appeals Board granted the defendant’s Petition for Reconsideration and rescinded the Findings and Order, returning the matter to the trial level.

In discussing this case with Joe I told him I was tempted to bring more panel disputes to hearing, forgoing the Medical Unit. He agreed that the power of the WCJ to make findings with regard to discovery could very well allow the parties to take such disagreements to hearing. However, he cautioned that the drawback to this strategy is that it might actually slow resolution of the issue if the other side was unlikely to appeal the Medical Director’s determination to the WCJ. Joe added that an opinion from the Medical Director in favor of your position may serve as valuable evidence when arguing the issue before the WCJ.

Feeling much better about how my case was going to go, I bid Joe adieu, left the liquor aisle and headed home with my cherries to watch The Crimson Pirate for the twentieth time.

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my lively imagination.

While Porcello lacks the designation “significant panel decision,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

As Joe cautioned, taking a panel dispute to a WCJ may not always be your best remedy and should be applied on case by case basis depending on the parties involved, as an opinion from the Medical Director in your favor may later serve as valuable evidence if a dispute is eventually brought before a WCJ.

The recent protests taking place across the nation and the world have had me thinking about due process and the powerful role that the rule of law plays in our society.

What we are experiencing is a call for all of us to do the work to uphold the ideals of due process, freedom and equality our democracy is meant to protect. I am hopeful that a better world is in the making.

We’re still making our own doubles for now. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 Legend has it that the Manhattan was invented by New York City socialite, Ms. Jennie Jerome, aka Lady Randolph Churchill, in the mid-19th century at a party for the newly elected Governor of New York, Samuel J. Tilden, held at the estimable gentleman’s club called the Manhattan Club. Debatable perhaps because at the time Lady Randolph was in fact in England and very much pregnant with one Sir Winston Churchill, but I digress.

2 Neither retirement nor a pandemic can stop a dedicated practitioner like Mr. Truce. Much like Mary Poppins’s seemingly bottomless carpetbag (of Disney fame) and Hermione Granger’s bottomless handbag (of Harry Potter fame), Joe’s briefcase possesses magical powers, granting him the ability to pull out any decision at a moment’s notice. A copy of Porcello can be obtained via email request.

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