It is no secret that a Worker’s Compensation Judge has the discretion to appoint a physician as the medical evaluator in a case. In a recent board panel majority decision, the majority recently upheld a trial judge’s use of discretion under LC 5701, to appoint a “regular physician” as the new medical evaluator should the parties fail to agree to an AME.

In the recent panel decision of Hadley v. East Bay Municipal Util. Dist., ADJ10222062;ADJ8022488 (OAK), Jan. 27, 2025, Decision After Reconsideration, the majority upheld the ruling from the trial judge that Dr. Scott T Andersen was to replace their QME at the time Dr. Michael Bronshvag, lest they reach an AME agreement.

For context, the parties had previously used an internal QME who passed away leading them request a new panel and getting Dr. Bronshvag as the internal evaluator. Over the course of 9 reports and a deposition in 3 years Dr. Bronshvag ultimately came to the conclusion that an additional QME was needed to provide an opinion on applicant’s bladder issues and recommended using a genitourinary specialist.

Once the medical unit failed to produce a panel, Applicant’s Attorney then proceeded to petition to replace Dr. Bronshvag with a new evaluator. Defendant’s, obviously, argued that after almost 10 years of litigation of the claim, already being on their second internal QME, and now needing a specialist opinion, a new internal QME to replace Dr. Bronshvag would only cause undue delay in resolving this case. Defendant proposed that an additional be produced in toxicology or occupational medicine per Dr. Bronshvag’s recommendation.

The WCJ ultimately decided that the Applicant’s petition should be granted, and decided to appoint Dr. Scott T Andersen as the regular physician to replace Dr. Bronshvag.

A majority of the board ultimately found that the trial judge did appropriately use their discretion to appoint Dr. Andersen as the replacement of Dr. Bronshvag in this matter, in part because they didn’t feel that Dr. Bronshvag would resolve deficiencies in the reporting given the procedural history of this case.

The board does cite McDuffie however, stating that as long as the parties were afforded the opportunity to agree to an AME before the appointing of a replacement.

The dissenting opinion on this decision, opined that the complete replacement of Dr. Bronshvag was unnecessary, and an additional panel in toxicology or occupational medicine would’ve done the job. It is also noted, that Chair Zalewski had concerns that the WCJ in this matter ultimately substituted their own opinion over that of the QME, citing to rule 35.5 in that it does not allow for the removal of a QME for reaching the conclusion that they require an opinion for a disputed body part outside of the scope of their particular field of expertise.

Ultimately, the facts in this case lend themselves to a niche scenario, but one that is common enough to raise an eyebrow. The primary issue here could hinge on the fact that the specialty originally requested by Dr. Bronshvag, was a specialty of which there were only five doctors in the state. One could also just as easily argue that an additional panel would not have been outside the norm to order by the WCJ. Regardless, if one finds themselves in a case where the evaluator won’t give a second opinion, and they need another specialty, they could find themselves on the short end of the judicial discretion stick.