Friday, April 11, 2014

Go Forth and Compromise

One of the more controversial elements of California workers' compensation law is the requirement in litigated cases to use Qualified Medical Examiners to resolve disputed medical and disability issues (other than treatment since SB 863 came out).

In the old days the litigants would get their own doctors to say what they wanted them to say.

Often enough there would be multiple doctors opining on different medical issues due to specialization and the number of body parts allegedly injured or diseased during the employment risk.

The applicant would procure reports favorable to his or her position, the defense would do likewise, and then they would go to court and ...

... settle. Usually.

Sometimes, and not very often, cases would not settle and then a judge would determine which report would govern the case.

Remember that the evidentiary rules in workers' compensation are very lax, relying on the "substantial evidence" standard, which means that if the evidence is good enough to support what the conclusion for which it is proffered, then it is "substantial" and can be relied upon by the court.

There were two major objections to this historically revered process: 1) medical legal expenses were at least duplicated because not only did both sides have to get expert opinion that were duplicative, but there often would be repetitive diagnostics; and 2) some were rankled because of the perception that money was being given away needlessly under the veil of compromise.

Of course it didn't help that if one went before a judge to determine which medical evidence would rule the case that more often than not it was the applicant's report because, more often than not, it was substantial and judges follow the overarching rule in workers' compensation that the law is to be liberally construed in favor of the injured worker.

So the QME process was born a dozen years ago. The thought behind this was that if the parties could not agree which medical professional was going to govern the case then the government would decide, thus cutting down on litigation, ergo costs, and resulting in less dispute.

The theory didn't translate into practice and one of the more common complaints I hear as I travel the state is that the QME process a) doesn't work as intended, b) is not timely, c) doesn't have enough physicians who know what they're doing, and d) has not reduced litigation.

The Workers' Compensation Appeals Board in a recent decision known as Navarro v. City of Montebello declared invalid administrative QME Regulation 35.5(e), which says, “In the event a new injury or illness is claimed involving the same type of body part or body system and the parties are the same, or in the event either party objects to any new medical issue within the evaluator's scope of practice and clinical competence, the parties shall utilize to the extent possible the same evaluator who reported previously.”

The Board's legal reasoning was that the regulation over-interpreted the Labor Code section that mandated the QME process, and thus there was not requirement to return to the same QME for subsequent injuries.

Honestly, when I read that regulation section I don't interpret it in the same way the WCAB did - because of the last part of the sentence that qualifies it with "to the extent possible."

In my mind that means that there is no requirement or mandate that the parties go to the same QME - because it may not be "possible" to do so for a variety of reasons.

But the Division of Workers' Compensation, which issued the regulation, interpreted it differently and conservatively, that the section mandated a return to the first QME unless there was some emergency or reason why that QME could not perform - thus we got the Navarro ruling.

The DWC has capitulated by DWC saying that its medical unit will issue new panels for claims made after the initial evaluation has taken place.

I was speaking at an event earlier this week and had engaged in conversation with a defense attorney about the QME process. He opined how ridiculous the entire process has gotten because of the shortage of physicians willing to participate in the process and because of the tight regulatory framework.

He relayed to me a situation where he and the applicant attorney both struck from the QME panel list the same QME! What to do? So he called up the applicant attorney and they settled on one of the other physicians on the list.

In essence they agreed to the same QME - they compromised, and settled.

THAT's how workers' compensation should work - get through the muck of the regulatory process (mandatory requirements be damned) to get a matter resolved.

I think at least in California workers' compensation this attitude has been lost - procedure has overtaken substance and gets in the way of resolving cases.

The Navarro case may or may not be a big deal from a technical perspective, but what the WCAB is really saying is, "get over it." Procedure needs to take a step back so that the substance of a case can get through the system to some resolution.

So, to my litigating brethren out there - compromise. Settle those cases and move on. There's a lot more in the pipeline that need resolution, particularly since the latest statistics from the Workers' Compensation Insurance Rating Bureau indicate that frequency is rising...

1 comment:

  1. Why do we still have the panel QME process after a decade of failure? Who likes it? Almost every attorney and doctor I speak to doesn't. Go back to dueling docs but put in place a practical financial incentive to use an AME.