November 16, 2022
By Jeffrey Stern
California Department of Industrial Relations Regulation section 31.5 details the various situations where a replacement panel of qualified medical evaluators may be deemed appropriate in workers’ comp cases. Under Regulation section 31.5(4), a replacement panel is available where “A physician on the QME panel is a member of the same group practice as defined by Labor Code section 139.3 as another QME on the panel.”
When you receive a panel, and suspect a Regulation section 31.5(4) relationship between the doctors might exist, what do you do? To confirm the relationship between the physicians, QME FORM 124 (QME DISCLOSURE OF SPECIFIED FINANCIAL INTERESTS) must be submitted to the doctor(s) with a request for an immediate response, which may or may not be forthcoming
If the physicians take their time in completing the form, you are faced with the dilemma of, “Do I strike a doctor to preserve my rights or wait for a response?” If you are striking the third doctor who is not suspected of having a financial relationship with the others, there is no reason to not issue the strike and proceed with the replacement panel process.
If, however, both of the doctors suspected to have a financial relationship are strike-worthy, the situation becomes more perilous. If it turns out there is no financial shared interest, a failure to strike in a timely way may well result in the selection of a QME not to your liking. If, on the other hand, you strike one of the two doctors to preserve your rights, and thereafter learn of a shared financial interest, your subsequent replacement panel request may be unsuccessful. In one particular recent case, the Division of Workers’ Compensation Medical Unit denied a request for a replacement because one of the two doctors had been struck and “circumstances under Regulation section 31.5(4) no longer apply.”
A subsequent inquiry to the legal department of the Medical Unit about this case has gone unanswered. This example highlights thator the time being, one must decide between serving QME FORM 124 and hoping for a prompt response or waiving the potential right to a Replacement panel and proceeding with a timely physician strike. While a stipulation with opposing counsel to extend the period to strike pending a response of the physicians might be sought, it will likely not be achieved, particularly if the two “objectionable” doctors are applicant-friendly.