Does an Applicant Have a Right to a Replacement QME After Obtaining Representation?
The general rule is that applicant does not have a right to obtain a new QME evaluation after obtaining representation.
This is clearly stated in Labor Code §4062.1(e): If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to an additional evaluation.
It is crucial to remember, however, that the operative phrase in §4062.1(e) is “has received.”
An applicant doesn’t have a right to an additional comprehensive medical-legal evaluation after obtaining representation. An applicant may receive a replacement QME panel after obtaining representation so long as they never received a comprehensive medical-legal evaluation from the panel that was first issued.
This was spelled out in the 2007 WCAB Panel decision Nelly Romero v. Costco, and is worth remembering. It is important for adjusters implementing the medical-legal process to be vigilant once they have properly made an objection to a primary treating physician’s report in accordance with §4060, §4061, and/or §4062.
If the QME examination is not scheduled as soon as possible, and the applicant decides to obtain representation, (QME exams literally arise from a dispute during the claims process, and the QME exam process might inspire an applicant to seek representation), that creates an unnecessary window of opportunity for the applicant’s attorney to request a new QME panel. This would delay the settlement of the claim, and could lead to a change in whichever QME specialty the adjuster had originally picked.
The lesson is: always remember to schedule a QME evaluation as soon as possible after obtaining a panel!
Circumstances Where Applicant Can Obtain Replacement QME After a Prior Evaluation
Applicants can obtain replacement QME panels, and have reports from a prior QME/AME evaluation barred from evidence, by making an objection per §4062.3.
4062.3(g) states if a party makes an ex parte communication with the AME/QME, the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another QME to be selected according to §4062.1 or 4062.2. (ex parte communication is defined as that which violates subsection (e), which requires all communications with a QME pre-evaluation to be served on the opposing party 20 days in advance of the evaluation, and that any subsequent communications with the medical evaluator be in writing and served on the opposing party when sent to the medical evaluator).
Recent WCAB Panel decision Chris Turner v. PT Gaming, however, reminded us that an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable. The repercussion being the 4062.3 remedy of obtaining a new QME panel/evaluation. The applicant in Turner claimed ex parte communication in violation of 4062.3 occurred when the QME served his report on defense counsel, but not on applicant’s counsel, and defense subsequently failed to serve the QME report on applicant.
The WCJ in the underlying case had noted the Second District Court of Appeal’s decision in Carlos Alvarez v. WCAB (2010), which stated “not every conceivable ex parte communication permits a party to obtain a new evaluation from another panel qualified medical evaluator.”
Practice tip: properly follow §4062.3’s prescriptions for service on the other party of every communication with an AME/QME! If a mistake is made and applicant’s attorney raises an issue, know you can argue the remedy of obtaining a new QME panel is not always mandated as a result of ex parte communication with a QME, as some communication may be regarded as insignificant and inconsequential.
If you find yourself in this situation where ex parte communication did occur, bringing up a willingness to litigate on the issue to applicant’s attorney may lead them to agree to a new AME instead of trying to obtain an entirely new QME panel, which would help mitigate any potential damage resulting from a failure to strictly follow the prohibition on ex parte communication with an AME/QME.