From the Desk Of: S. Alfonso Smith, Esq.
Associate Attorney, San Bernardino
Applicant Attorneys are returning from CAAA with the same theme discussed for years. The difference this year is to apply different tactics to accomplish their goal; schedule an AME of their choosing. Although the use of AME's has diminished, Applicant Attorneys still pursue choosing a doctor they prefer.
Here are some examples I've seen this past year:
Carpal tunnel injury? Applicant Attorney wants an Internist (MMM) when it's obvious Hand (MHH) or Ortho (MOS) would be best. Ankle sprain? Applicant Attorney wants Pain Management (MPA) when Ortho (MOS), Podiatry (POD), or even Physical Rehab (MPR) would be better. Knee injury? Applicant Attorneys wants a Chiropractor (DCH).
Is there anything defendants can do to mitigate their efforts?
In Caggiano v. County of Monterey (2018 Cal. Wrk. Comp. P.D. LEXIS 230), the applicant requested a panel in pain management. The defendant requested a replacement panel, asserting a neurologist would be more appropriate. The defendant didn' t follow the procedures in 8 CCR 31.5(a)(10). The WCAB noted any dispute to panel specialty is outlined in the regulations; the defendant's failure to follow said regulations appeared to be gamesmanship tactics. Not a good a look.
When there is an issue, what are the steps outlined in 8 CCR 31.5(a)(10)?
Who has the legal right? Are defendants disputing medical or is the applicant? Did we deny or pick up the claim? Who is filing for the PQME?We need to put the parties on notice when we dispute the specialty. There is no stated time frame. However, a good time to object is when you receive the panel from the Medical Unit. Don't forget to issue a strike!Send the Medical Director a copy of the Doctors First Report, your objection (did I mention exercise your panel strike), and the most recent PR-2.If the Medical Unit doesn't act within 30 days, or the Medical Unit doesn't agree with the objecting party, appeal to the WCAB via a DOR. The objecting party will have the burden of proof of showing why the specialty is improper.
While it may seem time -consuming to tackle a small issue, Applicant Attorney's bread and butter depend on who is the Med-Legal and the specialty does matter. Most Applicant Attorneys will yield and agree to the specialty of your choice to reduce their cost. While it may seem like an unnecessary bump in the road, stay consistent and don ' t allow Applicant Attorney to choose your Med-Legal without an agreement.
If you have any questions, please feel free to reach out to me directly at sasmith@parkerirwinlaw.com. These matters may seem complicated, but there is an answer our firm can help you with.