In light of the new Board Rule §30(d)(3) great care must be taken in timing the date of the defendant’s denial of compensability in light of the new regulation’s restriction on the defendant’s ability to request a QME panel to address a threshold compensability issue.

The new regulation states as follows: "Whenever an injury or illness claim of an employee has been denied entirely by the claims administrator...or...by the employer, only the employee may request a panel of Qualified Medical Evaluators...". (Emphasis added). In other words, the defendant cannot solicit any admissible medical evidence other than as indicated in Labor Code §4064(d) to defend a disputed claim if it denies the claim before commencing the AME/QME process. Furthermore, a Labor Code §4064(d) evaluation report is not admissible as to injury AOE/COE or PD so its value to the defendant is obviously quite limited.

This new Board Rule appears to directly conflict with Labor Code §4060(d) which states with regard to unrepresented employees that "If a medical evaluation is required to determine compensability at any time after the claim form is filed, and the employee is not represented by an attorney, the employer shall provide the employee with notice either that the employer requests a comprehensive medical evaluation to determine compensability or that the employer has not accepted liability... Either party may request the comprehensive medical evaluation to determine compensability…". (Emphasis added)  

With regard to represented employees, Labor Code §4060(c) refers the represented parties to Labor Code §4062.2. Labor Code §4062.2(b) states "If either party requests a medical evaluation pursuant to section 4060, 4061, or 4062, either party may commence the selection process for an agreed medical evaluator by making a written request naming at least one proposed physician to be the evaluator...If no agreement is reached...either party may request the assignment of the three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation". (Emphasis added). The clear conflict between the Labor Code and the new Board Rule will eventually have to be dealt with by the court.

The new Board Rule provides no incentive on the part of the applicant's attorney to agree to an AME once there is a denial of the claim as long as they have control over the treating physician. In that case only the treating physician’s reports will be admissible with regard to the issue of injury AOE/COE.

Given these severe limitations imposed upon the defendant with regard to obtaining a forensic medical evaluation, the defendant should initially issue a timely delay of its determination of compensability and diary its file for just prior to the denial deadline. In addition the defendant should contemporaneously commence the AME/QME process pursuant to Labor Code §§4060 and 4062.2. When the denial deadline is approaching, if there is no AME or panel QME report yet available, the defendant should issue a conditional denial pending receipt of the AME or panel QME report indicating that its denial of injury AOE/COE will be revisited upon receipt of the AME or panel QME report.

Please note that, since the new Board Rule only refers to panel QME evaluations and does not reference AME evaluations, it is possible that a denial can be issued at an earlier date once an AME evaluation has been agreed upon and is pending in order to cut off the defendant’s $10,000 medical treatment liability pursuant to Board Rule §9767.6 (c).

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The foregoing represents the opinions of Goldman Magdalin & Krikes, LLP only and is intended to be an overview of a very complex legal issue.  It should not be construed as a statement certifying the likelihood that these opinions will be ultimately determined by the WCAB or the court as binding legal precedent. Each case must be evaluated based upon its own independent factual and legal analysis.

© Copyright 2009 by Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.