ADJ8725567 · May 20, 2021

The cause of applicant's stroke is a medical determination that must be evaluated by a medical expert, and the parties cannot return to the orthopedic QME for this issue; thus, good cause exists for an additional QME panel in neurology.

From the decision · page 5The parties cannot return to the orthopedic QME to address the issue of causation for applicant's stroke. We therefore agree with applicant that an additional QME panel in neurology is necessary to evaluate causation for her stroke. (See also McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906 [the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues].)

Applicant did not show significant prejudice or irreparable harm, or that reconsideration of a final decision would not be an adequate remedy if the WCJ's order denying a replacement orthopedic QME panel remains intact.

From the decision · page 4Applicant takes issue with the WCJ's denial of her request for a replacement QME panel in orthopedics. Applicant has not shown that she will suffer significant prejudice or irreparable harm, or that reconsideration of a final decision will not be an adequate remedy if the WCJ's order denying her request for a replacement orthopedic QME panel remains intact.

The WCJ's decision resolved only intermediate procedural or evidentiary issues and did not determine any substantive right or threshold issue; thus, it was not a final order subject to reconsideration.

From the decision · page 3Here, the WCJ's decision solely resolves intermediate procedural or evidentiary issues. The decision does not determine any substantive right or liability and does not determine a threshold issue. With respect to applicant's contentions regarding the issue of temporary disability, this issue was not determined in the F&O, but was deferred pending development of the record from the orthopedic QME. Accordingly, the F&O is not a "final" decision and the Petition will be dismissed to the extent it seeks reconsideration.

The cause of applicant's stroke is a medical determination that must be evaluated by a medical expert, and the parties cannot return to the orthopedic QME for this issue.

Favours Applicant prevailed

This fact established good cause for an additional QME panel in neurology, leading to the granting of applicant's request.

From the decision · page 5The parties cannot return to the orthopedic QME to address the issue of causation for applicant's stroke. We therefore agree with applicant that an additional QME panel in neurology is necessary to evaluate causation for her stroke. (See also McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906 [the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues].)

Applicant did not show significant prejudice or irreparable harm, or that reconsideration of a final decision would not be an adequate remedy if the WCJ's order denying a replacement orthopedic QME panel remains intact.

Favours Defendant prevailed

This fact led to the denial of applicant's request for a replacement orthopedic QME panel.

From the decision · page 4Applicant takes issue with the WCJ's denial of her request for a replacement QME panel in orthopedics. Applicant has not shown that she will suffer significant prejudice or irreparable harm, or that reconsideration of a final decision will not be an adequate remedy if the WCJ's order denying her request for a replacement orthopedic QME panel remains intact.

Lab. Code, §§ 5900(a), 5902, 5903; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075

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

Applied to dismiss the petition for reconsideration as the WCJ's decision was not final.

From the decision · page 3A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

Cal. Code Regs., tit. 8, § 31.7(b)(3)

Upon a showing of good cause that a panel of QME physicians in a different specialty is needed, the Medical Director shall issue an additional panel in the specialty requested.

Applied to grant applicant's request for an additional QME panel in neurology.

From the decision · page 4Administrative Director (AD) Rule 31.7(b) provides for an additional QME panel in another specialty as follows in relevant part:

The cause of applicant's stroke is a medical determination requiring evaluation by a medical expert, not a legal presumption based on prior findings about hypertension.

From the decision · page 4The WCJ concluded that a neurological panel is not warranted because applicant's hypertension was previously found unrelated to her industrial injury in the 2016 Findings and Order. The WCJ's conclusion assumes that applicant's stroke was related to her hypertension and not to her industrial injury. The cause of applicant's stroke is a medical determination, which must be evaluated by a medical expert. (See e.g., Peter Kiewit Sons v. Industrial Acci. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 839 [30 Cal.Comp.Cases 188] [the "medical cause of an ailment is usually a scientific question, requiring a judgment based upon scientific knowledge"].)