California is again a poster child of a work comp system where procedure trumps substance and the injured worker gets the short end of the stick (with the employer getting a copy of that short end).
The Division of Workers' Compensation (DWC) issued a memorandum system wide last week announcing its decision to issue new qualified medical evaluator (QME) panels in cases where the original request for a panel didn't meet the timelines set in the Sept. 27 Workers' Compensation Appeals Board (WCAB) decision of Messele v. Pitco Foods Inc..
The short-staffed, director-less DWC Medical Unit is reviewing panel requests currently on file and will reject requests that are considered untimely under the Messele decision, the division said in a DWC Newsline published on Thursday.
The DWC also said it will allow requests for new panels in cases where a panel was issued based on a request now considered untimely. The steps to request a new panel vary depending on whether an evaluation has been performed, and are outlined in the division's memo.
If you're not from California this entire process is unfamiliar territory. Basically statutes and regulations are in place that govern specifically when parties to litigation attempt to seek an agreed medical evaluation (AME) and if that fails to request a panel of three doctors (QMEs) from the DWC in which to perform the medical evaluation.
Brad Chalk, president of the California Applicants' Attorneys Association, told WorkCompCentral the division's plans to honor new panel requests when a panel was previously issued could affect thousands of cases and that it takes between three and four months, on average, for a represented claimant to get a QME panel. If a claimant has already gone through the QME process, the new panel request would drag cases out longer and make them more expensive.
The waiting period between when an AME is proposed and when a QME request can be filed is necessary because attorneys race to file the first panel request. The winner is rewarded by getting to select the specialty of the panel. Applicants' attorneys typically want chiropractors or pain management specialists, who are considered more liberal than the specialties requested by defense counsel, which are usually orthopedic specialists.
There are also questions about whether a doctor will be paid for performing an evaluation if the Medical Unit convenes a new panel because the initial request was untimely. Theoretically under existing statutes the physician could not be paid because the medical report that issued via an untimely QME request would be inadmissible, and thus not subject to reimbursement.
What all of this nonsense points to is that workers' compensation is so ridiculously complex as to be completely out of touch with its stated constitutional purpose:
"A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party ... and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the state government." (Emphasis added.)
California workers' compensation litigation is so far removed from the stated goal of an expeditious, inexpensive dispute resolution system that it is arguably unconstitutional.
I've been around long enough to have witnessed how we got here - now how do the People of California take back control and bring some common sense to this system?
workers compensation, work comp, injured worker