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In 2009, Ismael Navarro filed an application and claim form alleging a cumulative injury from February 9, 2008 to February 9, 2009 to his back and ear and was evaluated by panel QME J. Yogaratnam, M.D., Then in 2010, applicant filed applications for adjudication with claim forms alleging a specific injury of June 1, 2010 to his back, lower extremities and legs and a specific injury of August 31, 2010 to his back and left leg.

In 2012, defendant petitioned to compel an evaluation of applicant’s two subsequent claims of injury by original panel QME Dr. Yogaratnam, but it did not seek to have applicant reevaluated regarding his previous claim of cumulative injury. Applicant objected. The WCJ found that applicant was entitled to a new panel QME in his specific injury cases and that QME Rule 35.5(e) that seems to require an applicant to return to the original QME did not apply.

Defendant filed a Petition for Removal contending that Rule 35.5(e) applies and because Rule 35.5(e) applies, applicant must return to original panel QME Dr. Yogaratnam. The WCAB in the En Banc decision of Ismael Navarro v.City of Montebello, administered by Corvel Corporation disagreed with defendant and affirmed the order for a new panel.

The WCAB reviewed the Labor Code provisions for the use of a QME and concluded “we see no provision in the Labor Code that requires an employee to return to the same evaluator for a subsequent claim of injury. And, we see no provision that distinguishes between procedures for evaluation of claims of injury based on the same or different body parts”.Thus the Labor Code does not require an employee to return to the same evaluator for a subsequent claim of injury.

“Rule 35.5(e) appears to impose an unwarranted limitation on the Labor Code, particularly sections 4060(a), (c), and (d), 4062.1, 4062.2, 4062.2(a), 4062.3(j), 4062.3(k), 4064(a), and 4067. Thus, Rule 35.5(e) appears to be invalid to the extent that it imposes an additional requirement that an employee return to the same evaluator when a new injury or illness is claimed that involves the same body parts and the same parties.” Applicant’s two claims of specific injury were reported after the original evaluation but before a subsequent evaluation by a new evaluator. Thus, under sections 4062.3(j) and section 4064(a), it appears that applicant is entitled to be evaluated by one new evaluator for his two subsequent claims of injury.

The WCAB therefore indicated its intent to rule that “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 that this requirement is therefore invalid.” The Petition for Removal was granted, and the parties were given 20 days notice of this intended ruling and an opportunity to respond.

In the event that this case becomes a final ruling, this will be the second QME rule to be declared invalid. In 2010, the En Banc decision of Amelia Mendoza v. Huntington Hospital, Permissibly Self-Insured; and Sedwick Claims Management Services, Inc. declared rule 30 to be invalid. The Appeals Board held in that case that: (1) California Code of Regulations, title 8, section 30(d)(3) (Administrative Director Rule 30(d)(3)), which states that when a claim has been entirely denied by the defendant only the employee may request a panel of Qualified Medical Evaluators, is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b); (2) the time limits of section 4062(a) for objecting to a treating physician’s medical determination do not apply when the injury has been entirely denied by the defendant; and (3) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability.