Back to Resources

Legal Updates

The Panel Race

Avoid the Wretched Non-Orthopedic Panel

If the typical workers’ compensation claim was analogized as an Olympic marathon, then the Panel Qualified Medical Evaluator (“PQME”) selection should be regarded as the 100-meter sprint. For purposes of this article, the context involves the situation in which the Applicant is represented by an attorney and the compensability of the claim has been delayed or denied.  

We have all been there countless times when the over-zealous Applicant Attorney, whom alleges every single orthopedic body part on the Applicant’s body, only to immediately request a Chiropractic, Pain-medicine, or Physical Medicine & Rehabilitation from the Medical Unit

Common-sense would dictate that if the primary mechanism of injury and allegations are orthopedic in nature, that an orthopedist would be the most appropriate and competent physician to evaluate the Applicant for his alleged injuries. However, this might be surprising to some, the California workers’ compensation system does not always operate pursuant to common-sense. Worker’s Compensation Judges will generally determine that a Chiropractic, Pain-medicine, or Physical Medicine & Rehabilitation is competent to evaluate an Applicant for their orthopedic complaints.

The California workers’ compensation system does not always operate pursuant to common-sense

Let us first explore the reasons an Applicant Attorney may deploy this strategy and its effect on the claim. The primary reasons an Applicant Attorney may race to the Medical Unit for a non-orthopedic panel is that, generally speaking, 1) the non-orthopedist will provide a more liberal report providing for inflated permanent disability figures, future medical care or gratuitous causation analyses, 2) the non-orthopedist is less likely to deem the Applicant permanent & stationary or maximal medical improvement, thus delaying the claim 3) the non-orthopedist is more deferential to the reporting of the primary treating physician, and 4) it prevents Defendants from having a reliable rebuttal to the inflated treating reports.

The effect of this strategy seems apparent, it unnecessarily delays the claim as long as possible, which extends temporary disability benefits and unnecessarily inflates the Applicant’s permanent disability to the dismay of insurance carriers, third-party administrators, employers, and defense counsels.

Applicant Attorneys are typically able to win the race to the panel specialty by using a Defendant’s denial or delay letter pursuant to Labor Code Section 4060 (“LC 4060”) before the defendants have had a chance to refer the case to their counsel.

LC 4600 governs the disputes over compensability and allows a panel if a medical evaluation is required to determine compensability at any time after the filing of a claim form. This is typically set forth in a Defendant’s Notice of Delay or Denial letter.

To avoid being beat to the panel specialty in a denied claim, the defendant could either delay the denial while referring the case out to counsel, or if denial needs to be issued, to immediately refer it to counsel with specific instructions to obtain the panel on the 10th day (+5 for mailing) after the denial pursuant to LC 4060.

You may be asking what the utility of delaying compensability is if Applicant Attorneys can simply obtain a panel on your delay letter. The devil, as they say, is in the details. Case law is mixed on whether it is proper for a party to obtain a panel pursuant to LC 4060 on a delay letter. Much of the case law discussed appears to hinge on the language used in the delay letter itself.

In one case, the appeals board held that the delay letter may qualify for a request for a medical evaluation pursuant to LC 4060, since the delay letter, for purposes for allowing a compensability examination were the same as a denial in light of the delay letter indicating that a LC 4060 evaluation was be needed to complete the investigation. See, Montoya v. Burger Buddies, LLC dba Carl's Jr. Restaurant, 2016 Cal. Wrk. Comp. P.D. LEXIS 242.

In Rayo v. Certi-Fresh Foods, Inc. 83 CCC 939, the appeals board rejected the applicant’s assertion that the defendant’s delay letter was a “request” for a medical evaluation pursuant to LC 4060. However, in Chavarria v. Crews of California, Inc. 2019 Cal.Wrk.Comp. P.D. LEXIS 534, the appeals board held that an Applicant properly requested a panel using a Defendant’s delay letter, based primarily on the terms used “a request for medical evaluation.”

Once Defendants are mindful of this strategy employed by Applicant Attorneys, they can, in conjunction with their counsel, better craft a delay letter to help avoid this pit-fall and to be first in time to request the appropriate panel from the Medical Unit.