Maria Resendiz V Tambro (California) (California) (Californi

[spreare]

Not sure whether anyone here is familiar with this case, but it is more about I think the defense trying to game the system by disqualifying IW choice of the DC as specialty in the panel choice.
There was a very cynical column written last year here on WorkCompCentral about how defense can game the QME process and IW' choice of a chiro PQME by objecting and going to the DWC for a specialty change on the premise that if there are medications involved then a DC cannot do the PQME. Well of course, medications are involved in 95% of claims. In a modern world, patient's take medications. fast forward a couple of cases came out where WCAB ruled that a party cannot willy nilly change the QME specialty. This latest ruling though, it does not say "en banc." so, is the issue still up in the air?


ahh, I tried to upload the opinion and order however the PDF file is too large. therefore it is on my dropbox:

https://www.dropbox.com/s/xg5vflpuic5he ... S.pdf?dl=0


Thank you!

the case was e-mailed to me and titled "victory for chiropractic physicians" but I am not sure if this is a victory or just a single ruling.

[spreare]

okay maybe not that interesting of topic but does anyone know whether the case has any binding authority on other cases that come up?

[vampireinthenight]

It is interesting, but not all that surprising. The WCAB has long held that chiros can evaluate anything physical. The theory is that the chiro will refer out something complicated like hand disability to a specialist with more experience in hand surgery and arthritic conditions in the hand. As if multiple QMEs are the best way to handle these cases. But this rarely happens anyway. Usually the chiro will attempt to rate everything which can work, except it is no secret that chiros generally provide liberal ratings, which lead to depositions about the extent of their knowledge and experience with things like upper extremity surgical outcomes, which then leads to trials on substantiality.

So, neither result is great, but that is what the WCAB insists is fair and contemplated by the QME Panel system.

To answer your last question, this is a panel decision and holds no binding authority at all. It shouldn't carry any weight at all and we used to get threatened with sanctions for even citing to panel decisions. But clearly it is the norm now (see footnote 2 of the decision you attached). I still think it is hilarious that the WCAB accepts a citation to their own non-binding panel decision and then states that they find their own opinion "persuasive".

[spreare]

It is interesting, but not all that surprising. The WCAB has long held that chiros can evaluate anything physical. The theory is that the chiro will refer out something complicated like hand disability to a specialist with more experience in hand surgery and arthritic conditions in the hand. As if multiple QMEs are the best way to handle these cases. But this rarely happens anyway. Usually the chiro will attempt to rate everything which can work, except it is no secret that chiros generally provide liberal ratings, which lead to depositions about the extent of their knowledge and experience with things like upper extremity surgical outcomes, which then leads to trials on substantiality.

So, neither result is great, but that is what the WCAB insists is fair and contemplated by the QME Panel system.

To answer your last question, this is a panel decision and holds no binding authority at all. It shouldn't carry any weight at all and we used to get threatened with sanctions for even citing to panel decisions. But clearly it is the norm now (see footnote 2 of the decision you attached). I still think it is hilarious that the WCAB accepts a citation to their own non-binding panel decision and then states that they find their own opinion "persuasive".

Anecdotally, I have been doing this for 17 years (Chiropractic panels) and I have not gotten deposed for the issue you make note of on referring or not referring to the correct specialty. Maybe it is happening with the other chiropractors, I don't know -- not my colleagues that I know of. I feel that I have been deposed a lot less than the orthopedists that I know. I think I am deposed in 1 out of 30 or 40 panels, maybe even higher, though more are scheduled, they are invariably cancelled prior. Whenever I have been deposed it has been to clarify restrictions, diagnoses or something much less monumental than I was concerned about going in. It is interesting in all my 17 years I have not had a challenge on substantiality - not one letter from a carrier or their counsel that my report did not meet evidentiary standards. I really do the think the flip side is that chiro's try harder to acquit themselves well, whereas many MD's blow through the work as quick as they can. I really do feel that the cynical column that was posted several months ago about trying to derail the chiro QME based on medications is just an attempt to find doctors that are more conservative. You hit the nail on the head: Chiro's are perceived to yield more PD. And for that, they (defense) want chiro's out of the system. It always comes down to the baseness of money and nothing more noble than that.

I disagree also with the notion that WCAB cannot sight a panel case: what they are doing is pulling logic to refer to. The judge found some rationale that made sense to him/her and brought it out. Of course I could be wrong on that. I am not a lawyer. This whole thing this last few years in QME's and everything else has made me so sick sometimes that it caused me to complete my first year in law school (which I always wanted to do nonetheless. And yea there they just cite all the top cases from the state supreme court, Learned Hand and whoever. But they also cite rationale from other sources -- it is just not binding. It shows why the justice is arriving at his (they were all hims. not hers back in the day) opinion.

But based on what you are saying about this case,there really isn't any progress on the issue since there are no binding decisions. So we plow on...

[carmenita]

WCAB Panel Decisions have always been persuasive authority especially if you get a subject litigated over and over again with the same holdings coming out of the panels. You can then claim it is “well established case law” and list all the citations. The other day I researched SOL for liens on Lexis-Nexis and WorkCompCentral panels. All coming back to the same holding in Kindelberger v. City of L.A., 2013 Cal. Wrk. Comp. P.D. LEXIS 209. So, since 2013 the WCAB has ruled over and over with this cases rationale. Anyhow panel decisions are secondary legal authority and citable in the WCAB. They are only persuasive and not binding. I haven’t researched the SOL issue in a year or so and needed to catch up on the most recent decisions. I also did so to persuade a DA who’s claiming SOL on one of my cases. Panels are a good way to eliminate side-issues that get in the way of settlement. He still felt it was a trailable issue but both of us know it’s not since he loses at the WCAB level thus wasting his client’s money. Anyhow, speared I did read the case you posted and the funny thing is I ran across another case with the same holding as the one you posted while researching the SOL issue.

[vampireinthenight]

It is interesting in all my 17 years I have not had a challenge on substantiality - not one letter from a carrier or their counsel that my report did not meet evidentiary standards.

You won't. The case is taken to trial and if your report is not substantial evidence, the PD award will either be altered or stricken or a new QME will be assigned, usually with no notice to you.

You can "cite" to just about anything and claim it is "persuasive". Hell, you can cite to a New York state decision if you really want to. I am fully aware that panel decisions are cited regularly. Of course, this only really became popular when Lexis started pumping them out. Prior to that, it had to make the CWCR, which at least provided some kind of filter. I just think it's sad because it stifles most creative, insightful interpretations of statutes and the independent facts of a case. It encourages a herd mentality where each judge feels pressured to conform to a limited interpretation when the panel decision does not necessarily represent a consensus at the WCAB and by definition does not enjoy endorsement by the Courts of Appeal.

If there are so many consistent panel decisions on a topic with no binding authority then the WCAB should issue an en banc decision. Otherwise, what's the point?

[carmenita]

I agree that the WCAB should issue more en banc decisions. I think it's pointless to litigate a fact pattern and set of laws or regulations over and over again but that is what we have. My only point is good or bad panels do matter to the WCJ and in settlement negotiations especially if all of the same holding. That's my two cents worth.

[spreare]

Of course in order for an en banc decision to be made, it has to be taken up , or challenged. Maria Resendix v Tambro is likely not being challenged because the ER does not want it to become en banc.

[spreare]

It is interesting in all my 17 years I have not had a challenge on substantiality - not one letter from a carrier or their counsel that my report did not meet evidentiary standards.

You won't. The case is taken to trial and if your report is not substantial evidence, the PD award will either be altered or stricken or a new QME will be assigned, usually with no notice to you.

I think I would have heard through the grapevine of my local contacts that there is a report I submitted that was not substantial evidence.

[ymcgavin@socal.rr.com]

It is interesting in all my 17 years I have not had a challenge on substantiality - not one letter from a carrier or their counsel that my report did not meet evidentiary standards.

You won't. The case is taken to trial and if your report is not substantial evidence, the PD award will either be altered or stricken or a new QME will be assigned, usually with no notice to you.

I think I would have heard through the grapevine of my local contacts that there is a report I submitted that was not substantial evidence.

Hello All,

It's been quite a while since I dropped in and reviewed these forums, to ascertain if there were any topics of interest. It appears as though opposing posts on these forums have certainly dwindled since I departed the WC system for the frictionless work found in treating patients with non-litigated claims. (e.g. BCBS, UHC, Aetna, Cigna, Tricare, etc.)

This topic is of slight interest to me, and although I have usually found posts authored by @vampireinthenight to be spot on, I have to disagree with his position that a QME would not be notified of his/her med-legal report being judicially held as not substantial evidence.

Labor Code §139.2(d)(2) addresses this issue in full, and it has been around since we had "dueling" QME reports -- and it is still in effect today:
http://leginfo.legislature.ca.gov/faces ... nNum=139.2.

@spreare, you would have been notified by the AD, if any of your med-legal reports was determined to not comply with Labor Code §4628, or AD Rule 10606.

Enjoy the day,

York McGavin