This case addresses not only what is necessary to constitute a valid objection sufficient to trigger the QME panel process, but also confirms the process when an unrepresented applicant becomes represented after a QME panel was obtained under Labor Code 4062.1 but before attending an evaluation.

In Hazen v. Porterville Unified School District, (2022) 87 Cal. Comp. Cases 932, the issue raised at trial was “The validity of the PQME process; whether there was a valid objection to trigger the Panel QME process; the Applicant contending that the Permanent Disability Notice was deficient because if failed to sufficiently describe the dispute.”

Applicant was not represented when he was evaluated by the PTP and deemed MMI/P&S with a finding of impairment, need for future medical care and a return to work with restrictions. The claims examiner issued a Notice of Permanent Disability indicating the existence of permanent disability, value of permanent disability, and need for future medical. Further, the notice stated “You and I both have the right to disagree with the physician’s findings and request a comprehensive medical evaluation. I disagree with the physician’s findings . . . The determination of permanent disability is based on the evaluation of treating physician . . . I disagree with the results of the evaluation.” The Notice was utilized to obtain a QME Panel. 

Applicant then retained an attorney and defendant obtained a replacement QME panel pursuant to Romero v. Costco Wholesale, (2007) 72 Cal. Comp. Cases 824. 

Addressing the issue of whether the Notice of Permanent Disability constituted a valid objection to trigger the QME panel process, the Board turns to Labor Code 4062.1 that outlines the process for initiating the QME panel process when dealing with an unrepresented applicant. Specificity as to the basis for the objection is required, especially when dealing with an unrepresented applicant. It was determined that the Notice did not specifically delineate which of the PTP’s findings or results defendant disagreed with. The Notice merely noted a blanket disagreement with the PTP’s findings and results and failed to place the unrepresented applicant on sufficient notice as to the issue defendant had with the PTP’s report which was evident based upon the applicant’s request for a QME Panel which noted “. . . Keenan disagrees with treating physician’s findings.” The Board determined that the Notice of Permanent Disability failed to set forth sufficient identifiable factors to constitute a valid objection pursuant to Labor Code 4061 on which to base a request for a panel where the applicant was not represented. 

Regarding the validity of the replacement panel, the trial judge determined that the replacement panel was invalid, citing Labor Code 4062.2 which describes the procedure to obtain a QME panel in cases where the applicant is represented. There was no dispute that applicant was entitled to a replacement panel under Romero. Either parity was entitled to request the new QME panel once applicant became represented, however, the parties are required to follow the process described in Labor Code 4062.2. In the present case, prior to requesting the replacement panel, defendant did not send applicant attorney an objection pursuant to Labor Code 4061 or 4062 prior to requesting the replacement panel from the Med Unit and therefore the panel was not validly obtained. 

This case serves as a reminder that although the focus is usually on the race to obtain the QME panel, defendant needs to be diligent in the preparation for the race. This includes making sure that if they are the party preparing the objection to the opinions of the PTP, it is clear and specific, identifying what findings, results and/or opinions that defendant disagrees with. This is especially important when dealing with unrepresented applicants. The Board specifically states “[c]larity as to the specific disputed issue, or issues, are of particularly more significance when an unrepresented employee is maneuvering through the comprehensive medical legal dispute process on his or her own.”

The case also serves as an affirmation that in situations where the unrepresented applicant becomes represented and Romero applies, applicant attorney (or defendant) cannot simply submit a request for replacement panel, in the specialty of his or her choice, without first initiating the process outlined by Labor Code 4062.2. This levels the playing field between the parties, not providing one party an unfair advantage in the ultimate race to obtain the QME Panel in the desired specialty.