Fernando Yanes claimed injury to his left knee while employed as a respiratory therapist by defendant Valley Children’s Hospital on October 24, 2021. The employer admitted injury arising out of and in the course of employment, but contested the nature and extent of the injury.
On January 20, 2022, Yanes, as an unrepresented worker, requested a panel of orthopedic Qualified Medical Evaluators, pursuant to Labor Code section 4062.1. On January 27, 2022, the Division of Workers’ Compensation (DWC) Medical Unit issued panel no. 2802519. Yanes however did not have an evaluation as a result of that panel.
On March 3, 2022, Yanes retained legal counsel. On March 7, 2022, his counsel requested a replacement panel in the specialty of chiropractic medicine. In response, on March 21, 2022, the DWC Medical Unit issued QME panel no. 2839682, in the specialty of chiropractic medicine. On March 31, 2022, the employer objected to panel no. 2389682 on the grounds that the panel request letter was procedurally deficient.
On April 13, 2022, the parties proceeded to trial on issues of the validity of the Replacement Panel Request pursuant to Labor Code Section 4062.2 and Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824 [2007 Cal. Wrk. Comp. LEXIS 168] (Romero), and whether the defendant was entitled to a new panel in orthopedic surgery, and whether substantial justice required the parties to restart the panel QME process under section 4062.2.1
The WCJ issued the F&O, invalidating the chiropractic panel 2839682, and determining that defendant was not entitled to a new panel of QMEs in orthopedic surgery, and directing the parties to obtain a new panel of QMEs pursuant to section 4062.2.
The WCAB granted a Petition for Removal filed by Yanes, and substituted new Findings of Fact that QME chiropractic Panel No. 2389682 was valid, and rescind the order that the parties obtain a new panel of QMEs. in the case of Yanes v Valley Children’s Hospital ADJ15870256 (May 2023).
Applicant’s Petition for Removal argued that the WCJ’s decision was inconsistent with the significant panel decision in Romero, and subsequent jurisprudence applying Romero. Applicant asserts that under Romero, the parties are not required to “start all over and submit a new objection letter to that which has already been objected to in the first place when the original unrepresented Panel was requested.” Applicant also argues that he was entitled to obtain a new panel of QMEs after obtaining legal representation because the “evaluation” process described in section 4062.2(a) is separate and distinct from the process for obtaining a panel.
Defendant’s Answer argued that Romero and the subsequent panel decisions cited by applicant “do not specifically address the procedural requirements for obtaining a new panel under Romero and in compliance with the provision set forth in Labor Code §4062.2(b).”
The parties, while applicant was unrepresented, identified a medical dispute, and initiated the QME evaluation process. Defendant accepted liability for the left knee only, and liability was denied for left knee ACL findings and need for surgery. Once the parties have identified a medical dispute, the procedure for obtaining a panel of QMEs where applicant is not represented is governed by Labor Code section 4062.1. The parties at this point satisfied the procedure for obtaining a panel, and the DWC Medical Unit issued panel no. 2802519. The parties did not dispute that this panel was valid when originally issued, and that applicant never attended a QME evaluation with any of the physicians from that panel.
In Romero the WCAB panel noted that “because applicant had not attended and participated in the examination by the panel QME when she changed from being not represented by an attorney to being represented, she had not ‘received’ a comprehensive medical-legal evaluation pursuant to section 4062.1 and is, therefore, not precluded from requesting a new QME panel pursuant to section 4062.2.“
Similarly, in City of Tracy v. Workers’ Comp. Appeals Bd. (Luckhardt) (2019) 84 Cal.Comp.Cases 838 [2019 Cal. Wrk. Comp. LEXIS 73] (Luckhardt), the parties satisfied the prerequisites to obtaining a QME panel in orthopedic surgery while applicant was unrepresented. Following issuance of the panel, but prior to any QME evaluation, applicant retained counsel. Applicant’s counsel then requested and received a new panel of QMEs in pain management, pursuant to Romero. The WCAB affirmed the WCJ’s determination that while the parties had completed the process necessary to obtaining a QME while applicant was unrepresented, the applicant had not yet received a comprehensive medical-legal evaluation by a QME, and was thus entitled to a new panel of QMEs under section 4062.2. (Id. at 840-841.)
Applicant’s request for a new panel of QMEs on March 7, 2022 was made only after the parties had identified the medical dispute that required a QME evaluation, and had taken the appropriate steps to obtain a valid panel of QMEs. The parties were not thereafter required to reinitiate a dispute resolution process that was already underway and had appropriately resulted in the issuance of a prior panel.
The WCAB further noted that “requiring the parties to repeat the procedural steps necessary to obtaining a panel of QMEs once applicant obtains counsel is inconsistent with our constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4.)”
Thus the panel was persuaded that “the decision of the WCJ to invalidate panel no. 2839682 will result in significant prejudice or irreparable harm.”