Co-Defendants obtaining separate QMEs (California)

[wcscout]

Navarro allows for a QME per DOI, but is there anything that specifically allows two different Defendants to each obtain their own panel QME on the same date of injury?

[vampireinthenight]

No. This is generally discouraged and not allowed. I can't think of any weird scenarios where this would be permitted, although things can go sideways where the AA agrees to an AME with only one of the Defendants.

So, hopefully the defendants can agree on who to strike from the panel. Otherwise, a rift gate portal will open and you will be battling into oblivion.

[mytwocents]

I usually agree with Vampire but on this one, I can think of a scenario where separate QME panels would be allowed. When you talk about two defendants on the same date of injury, I assume you mean a CT with more than one employer or insurance company during the last year of injurious exposure. In such a situation, the WCAB has allowed each defendant to obtain its own QME panel, reasoning that all the applicant would have to do to prevent this is to elect against one defendant or the other. (See Chachavac v. LB Industries, 2015 Cal. Wrk. Comp. P.D. LEXIS 516) To hold otherwise would probably constitute a denial of due process since a defendant that was joined after the first panel was obtained would have no input into the medical evidence used to determine the disputed issues.

[vampireinthenight]

Well, it's certainly debatable. 4062.2(a) seems to contemplate only a single evaluation to resolve any dispute for a claimed injury.

Note, the case you cited is pretty low on the totem pole. It is not really even a commissioner decision (denial), since it only recites the WCJ opinion. I'm sure there are cases going the other way. Plus, Chanchavac simply said there is nothing in 4062.2 prohibiting the second panel. Expecting the LC to specifically prohibit every course of conduct by a party is a pretty tall order and creates a very loose standard. The OP asked if there was anything specifically allowing it, which there is not, and is probably the way the WCAB should be looking at it.

I get your point though, it does seem unfair to be bound by a decision to use a QME that a party had no decision in selecting. I acknowledge the co-def #2 would not be bound by an pre-existing AME. When the code is silent on something, I agree that fundamental fairness and due process should be considered. The flip side here is that co-def #2 would have the advantage of sitting back and waiting to see the results of panel #1 before taking a second bite with panel #2, effectively putting them in a better position than co-def #1...

Just another problem with the single-QME system...

[mytwocents]

You make some very good points and certainly there are some problems with allowing a second panel. Possibly it might depend on whether the second defendant was joined before or after the panel selection. What if the first QME said there was no injurious exposure during the coverage period of the Insurance company that participated in the QME selection? There are a lot of AMEs and QMEs who have a tendency to find against the party that wasn't involved in the referral. Would the other carrier be limited to deposing the existing QME? What would you do if the attorney for your client's co-defendant didn't bother to conduct discovery or provide the doctor with medical records that tended to show that the case wasn't compensable? Personally, I think it would be better to allow each defendant to get its own report rather than create a perception of injustice. I would expect that this situation doesn't come up that often.

[vampireinthenight]

And what if the panels are in different specialties? You could get some pretty wild differences in opinions!

We are also only looking at this from one perspective, the defendants. There is an anomaly here because panels can be requested by either party (the code seeming to infer that "parties" means the Applicant and a Defendant). In fact, the entire selection process depends on the actions (or inactions) of each party. This means that when D2 starts their own, second, panel process, the Applicant participates in this as well, meaning the whole specialty selection, strike process, etc.

Acknowledging this, can Applicant initiate a second panel process by adding the second defendant? Why not? Let's say AA blew it on the first panel and did not get the specialty he/she wanted or blew the strike. Then D2 is joined, so AA starts the panel process again. Does D2 have to agree to the second panel? There certainly is no provision requiring both parties to agree to obtain a panel. What would stop AA from proceeding in this way?

[jpod]

Isn't the public policy at work on 4062.2(a) the same as the public policy that created 5500.5? That issue was that WCAB resources were being gobbled up by disputes between insurers and not disputes between the injured worker and the insurer. Isn't the contribution process the vehicle for dueling insurers to duke it out after the applicant's case has resolved as to the applicant?

It seems to me that due process is a weak argument on these type of public policy issues. Recall that the US Supreme Court in White vs. NY Railroad dispatched employer arguments that state WC laws violated their due process rights by making them strictly liable for work place injuries. The rationale at the root of that decision was the employer would not be paying for the cost of purchasing WC insurance because that cost is no different than wages and cost of materials which factor into the pricing of the product the consumer purchases. The public policy is to allocate those costs to the consumers who buy the products.

This concept is not limited to WC either, it has been expressly stated that this is the rationale behind the Respondeat Superior doctrine which was recently cited in JAKE NEWLAND, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES B277638 (Los Angeles County Super. Ct. No. BC514945 (sorry I don't have the actual cite):

"..Rationale for Respondeat Superior Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s tortious conduct within the scope of employment. (Jorge, supra, 3 Cal.App.5th at p. 396.) The employer is liable not because it controls the employee’s actions or has any fault, “‘but because the employer’s enterprise creates inevitable risks as a part of doing business. [Citations.]’ [Citation.]” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 94.) “‘“The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.”’ (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959– 960 (Hinman), quoting Prosser, Law of Torts (3d ed. 1964) p. 471; accord, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 304 [policy goals of the doctrine are ‘preventing future injuries, assuring compensation to victims, and spreading the losses caused by 14 an enterprise equitably’]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [‘central justification for respondeat superior’ is that ‘losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business’].)” (Jorge, supra, 3 Cal.App.5th at pp. 396–397.)..."

[mytwocents]

Aside from the fact that Labor Code section 4062.2 says that “either” party may request a panel, the procedure must have been devised with the idea that it would only involve two parties. There are three names on a QME panel which is one more name than two parties can strike. If you could have three parties participating and they could each strike a name. there would potentially be no one left to serve as the QME.

It is true that Labor Code section 4062 says, “. . . and no other medical evaluation shall be obtained.” However, that language can reasonably be interpreted to mean “no other medical evaluations” as between the two parties involved in the striking procedure. I can’t find anything in sections 4060 et seq. that precludes the assignment of additional panels as between different applicants and defendants.

Also, just as there can be more than one defendant per injury, there can also be more than one applicant, such as where a widow and a child from a prior marriage file separate Applications in a death claim. If the widow’s panel QME says the death isn’t compensable, it doesn’t seem fair that the other applicant should be automatically bound with no opportunity to engage in the striking procedure.

I don’t think an applicant could request an additional panel after it had already selected a PQME with a particular defendant. If a second defendant was joined thereafter, only the newly joined defendant could request a second panel. And while a defendant could wait and see what happened with the first panel before requesting a second one, it probably wouldn’t waste its money unless there was some reason to believe that the first QME had made a wrong call.

Even in that Chanchavac panel decision where the WCAB said the applicant could have made an election, there seems no reason why the defendant that was elected out wouldn’t be entitled to its own panel QME in contribution proceedings provided it could get the applicant to show up.

So, while others may disagree, I believe both the Labor Code and due process allow different combinations of applicants and defendants to obtain separate QME panels.

[vampireinthenight]

Well, until there is direction from the DWC, I suppose it doesn't hurt to try!

One thing to remember if you are going to argue the due process/fairness route: The WCAB views the panel process as inherently fair and unbiased. They will view the panels as full of doctors, all of whom are qualified to assess disability issues. Unlike an AME, any given panel is still "random". Parties getting stuck with doctors they don't like is just seen as part of the process and happens all the time whether there are 2 parties or 20.