In Galleano Winery, Inc. v WCAB (Macias) (1997) 61 CCC 1547, the Court declared that the workers’ compensation process will be perverted where there is any “exercise in gamesmanship.” Recently, this practice has become prevalent in the medical-legal procedure pertaining to the procurement of panel QME reports.
It is very common for an allegedly injured worker’s attorney to seek a chiropractic QME panel, based on the generally accepted premise that these practitioners are more liberal than orthopaedic surgeons. This was evidenced in the case of Garza v O’Reilly Auto Parts 2017 Cal. Wrk. Comp. P.D. LEXIS 3. Garza claimed to have sustained an industrial injury to his left foot. The condition was deemed non-industrial by the initial treating physician. After the denial of the claim, he filed an application alleging injury to his left foot, back, and knees. His attorney sought from the Executive Medical Director a chiropractor QME panel. Defendant registered an objection and requested a panel comprised of orthopaedic surgeons. Applicant’s counsel filed a DOR regarding the issue of the QME panel dispute. Subsequent to the completion of Trial on this issue, the Court held that the issuance of the orthopaedic panel was correct on the ground that CCR Section 31(a) expressly requires that the specialty identified by the requesting party be appropriate. Defendant correctly lodged an objection to the designation of chiropractic as the QME specialty, pursuant to CCR Section 31.1(b). Applicant’s counsel’s Petition for Removal was denied based on the absence of irreparable harm occurring by the failure to have a chiropractic QME panel issued. The Court expressly held that the right to designate a specialty is not absolute and is governed by whether the particular field is appropriate. In this case, given the underlying diabetes and the presence of necrosis, it would not have been appropriate for a chiropractor to have conducted the exam.