In the original Navarro decision the WCAB had issued a notice of intent to rule that Administrative Directive Rule 35.5(e) is an invalid interpretation of the Labor Code concerning medical-legal evaluations.
Rule 35.5 had limited injured workers and employers from electing to obtain a different medical-legal evaluator in cases where subsequent claims of injury were asserted and the injured worker had already undergone a QME evaluation. Rule 35(e) required in such circumstances the employee to return to the same QME to the extent possible.
The WCAB said there's nothing in the statutes that could be interpreted to mandate a single QME evaluator -
"Based upon our review of the relevant statutes and case law we hold that:
(1) The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury.
(2) The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and therefore, this requirement is invalid."
Navarro claimed a cumulative trauma injury through February 9, 2009 and was evaluated by a panel QME. Thereafter he filed additional claims for specific injuries with some overlapping body parts (but not all). Defendant petitioned to compel evaluation of the applicant's two subsequent claims using the original panel QME but did not ask for a re‑evaluation of the prior cumulative injury. Applicant objected arguing Rule 35.5(e) was invalid as an interpretation of the parties rights. The trial judge agreed with applicant and declined to order a re-examination with the same physician.
The language that led to the contest is in Labor Code section 4062.3(j): "The medical evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee's initial appointment with the medical evaluator.”
Some of the folks in the system believe that the WCAB has opened a can of worms, inviting "gaming" of the system.
Others are more circumspect and don't believe that this decision really makes any big difference.
I'm one of the "others" - this case is much to do about nothing in the grand picture.
First, the case affects a very small percentage of cases - the fact pattern in this case is not representative of but a small minority of claims. Most cases don't get litigated, and when they are litigated most claims don't allege new claims of injury after a QME evaluation.
Second, for those cases where new claims of injury are alleged after an initial QME evaluation, the procedure is now clearly spelled out - get a panel going now and don't mess around with trying to get back to the same doctor.
Applicant attorney John Don remarked to WorkCompCentral that, "Comp is hard enough without overzealous attorneys conflating the claim with needless additional panels," suggesting that the answer was to use Agreed Medical Examiners as much as possible.
And defense attorney Richard "Jake" Jacobsmeyer, in his email blast about the opinion, was likewise conservative in his view of Navarro, stating that the case isn't going to make a big difference in the day to day operations of workers' compensation litigation, and that the opinion clearly states that any QME evaluation is to provide a report that covers all claimed injuries prior to the date of the evaluation.
Navarro is not a big deal folks. Relax. It will have minimal impact on claim costs, means very little in terms of procedural interference at the trial level, and actually clarifies a matter subject to interpretation so everyone's on the same page.
This does not require a legislative fix and there's no need to "reform" anything. Get back to your job of providing benefits as quickly as reasonably possible to get the claimant out of the system and back into the work force.