ADJ18158400 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal granted; WCJ's April 19, 2024 Joint Findings and Order rescinded; new order issued finding applicant's QME panel valid and to be utilized.

Petition for Reconsideration and/or Removal filed seeking review of WCJ's April 19, 2024 Joint Findings and Order; WCJ found second QME panel improperly obtained before cumulative trauma claim denial; parties disputed validity of QME panels and appropriate specialty; WCJ recommended denial of Petition; Board dismissed Petition for Reconsideration as non-final order but granted Petition for Removal, rescinded WCJ's order and issued new order finding applicant's QME panel properly obtained.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

QME/AME processApplicant prevailed

The Board found the applicant's QME panel was properly obtained despite the WCJ's contrary finding, based on the statutory interpretation of Labor Code section 4062.2 and case law, and granted removal to rescind the WCJ's order. The Board also found the specialty dispute moot as the applicant's panel was valid.

From the decision · page 1Applicant filed this Petition for Reconsideration and/or Removal ("Petition"), seeking review of the workers' compensation administrative law judge (WCJ)'s April 19, 2024 Joint Findings and Order ("F&O"), wherein the WCJ determined that the second Qualified Medical Examiner ("QME") panel in these cases was improperly obtained before the cumulative trauma claim was denied, that the proper specialty for both claims is orthopedics, and that although the first QME panel was also improperly obtained in violation of Labor Code section 4062.21, the parties should meet and confer to determine whether to use that panel anyway or to obtain a replacement panel. Applicant contends that the WCJ erred in finding the second QME panel improperly obtained, and therefore that the WCJ also erred in his other orders.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final orders.

The Board dismissed the Petition for Reconsideration as it sought review of a non-final order.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

The Board granted removal because the applicant showed substantial prejudice and reconsideration was inadequate.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

Labor Code section 4062.2; Bahena v. Charles Virzi Constr. (2014); Montoya v. Burger Buddies, LLC (2016); Chavarria v. Crews of Cal. (2019)

Under Labor Code section 4062.2, a QME panel may be requested no earlier than 10 days after mailing a request or objection; case law allows requesting a panel after claim denial without additional request letter.

The Board found the applicant's QME panel was properly obtained despite the WCJ's contrary finding, based on statutory interpretation and case law.

From the decision · page 1Applicant filed this Petition for Reconsideration and/or Removal ("Petition"), seeking review of the workers' compensation administrative law judge (WCJ)'s April 19, 2024 Joint Findings and Order ("F&O"), wherein the WCJ determined that the second Qualified Medical Examiner ("QME") panel in these cases was improperly obtained before the cumulative trauma claim was denied, that the proper specialty for both claims is orthopedics, and that although the first QME panel was also improperly obtained in violation of Labor Code section 4062.21, the parties should meet and confer to determine whether to use that panel anyway or to obtain a replacement panel. Applicant contends that the WCJ erred in finding the second QME panel improperly obtained, and therefore that the WCJ also erred in his other orders.

ADJ18158400 · July 8, 2024

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