Okay. Let’s get one thing straight applicant attorneys. Labor Code §4060 governs the dispute over compensability of an injury, which is something we all know. What seems to be happening with regularity, however, is applicant attorneys are expecting some type of objection letter to issue before the defendant seeks a compensability examination.
Either party may request a comprehensive medical evaluation regarding compensability under Labor Code §4060 and an employer is not required to request a QME panel before denying liability for an injury, even if the denial is based on medical causation grounds. See Mendoza v. Huntington Hosp. (2010) 75 CCC 634 (en banc).
In the Mendoza case, the WCAB upheld the judge’s ruling that the defendant was entitled to obtain a QME panel from the Administrative Director pursuant to Labor Code §4060 and §4062.2 regarding the issue of compensability, even though the defendant had already denied the applicant’s claim. In that case, the Board invalidated former 8 CCR §30(d)(3), which said that when an injury claim had been denied entirely by the defendant, only the injured worker could request a QME panel. The Workers’ Compensation Appeals Board held that former Rule 30(d)(3) was invalid because it was inconsistent with Labor Code §4060 and exceeded the scope of Labor Code §5402(b).
Further, when compensability is denied, neither the employer nor the employee is liable for the cost of a comprehensive medical-legal evaluation performed by anyone other than the treating physician, except as provided in Labor Code §4060(b). In addition, the comprehensive medical-legal evaluation is not limited only to the issue of compensability of the injury, despite what many attorneys may say, but must actually address all medical issues in dispute at the time of the evaluation for it to constitute substantial medical evidence per Labor Code §4062.3(j).
There are still attorneys out there who also think the parties are required to attempt negotiation of an AME before requesting a comprehensive medical evaluation or any PQME for that matter. Amendments enacted by SB863 eliminated the need for parties to first attempt agreement on an AME before requesting a three-member panel, which only made sense because often times the parties would simple select a physician they knew the other party would never agree to and then proceed to request the panel.
In order to obtain a panel of Qualified Medical Evaluators to evaluate compensability under Labor Code §4060, the applicant must simply be notified of the issue regarding compensability, which can come in the form of a delay or denial notice. In fact, requesting the three-member panel from the new electronic process does not even require that a copy of any objection, delay or denial letter be sent. The Administrative Director is following the plain language of Labor Code §4060 that allows a panel if a medical evaluation is required to determine compensability at any time after the filing of a claim form. According to the DWC’s own website, in order to obtain a Labor Code §4060 panel in a represented case, the defendant must simply complete Form 106 accurately, including a proof of service and make sure that he or she: (1) designates a specialty for the QME panel requested; (2) state the specialty preferred by the opposing party, if known; and (3) state the specialty of the treating physician. You can also attach the “request letter” pursuant to 8 CCR §30(b)(1). As always, be certain to be the first in time to request the panel so that you can obtain the appropriate specialty for evaluation of your injured worker.