Calif Edition Banner March 2010
Vol 2, Issue 15

Find Solutions & Strategies                                April 11, 2011

Rule 38Medical Examiner Reporting Under Rule 38
Recent panel decisions show how the WCAB is enforcing time frames for reporting
In This Issue
* RULE 38
* BLOG ROUND UP: fraud, CCCs, power press exception
* NEWS HEADLINES: WCIRB informational filing

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


I want to thank all of the readers who have sent me feedback on this free eNewsletter. If there's a topic that you would like us to address in an upcoming issue, please let me know.



Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

Laughlin, Falbo, Levy & Moresi LLP and Sedgwick LLP present



A free seminar series on recent developments in employment and workers' compensation law since the passage of SB 899 in 2004, as well as return to work/interactive process obligations.


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Presentation Topics:

- Some Like it Hot: Top 10 Hot Button Employment & Labor Issues in Workers' Compensation

- Monkey Business: Stopping Fraudulent Workers in Their Tracks

- Something's Got to Give: The Spiraling Costs and Endless Litigation of Ogilvie and Almaraz et al. When Is Enough Enough?

- The Misfits: Jim Pettibone and Barry Lesch Round Up and Corral Recent Case Law


Breakfast: 8 - 8:30 a.m.

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rule 38

Medical ReportRecent WCAB Panel Decisions Show the WCAB Taking a Flexible Approach to Enforcing Time Frames for Medical Examiner Reporting Under AD Rule 38


The enactment of SB899 in 2004 wrought a major change in the way parties are allowed to conduct medical discovery and obtain expert medical evidence on disputed medical issues. The parties are no longer permitted a free hand to select medical-legal examiners, but are required to participate in a process that results in the selection of only one medical-legal examiner in each relevant medical specialty. The parties can select an agreed medical examiner (AME), or, failing agreement, can begin a process by which each party can strike the name of a qualified medical evaluator (QME) from a panel of three physicians issued by the Medical Unit of the Division of Workers' Compensation, thus leaving one QME who would evaluate the worker claiming benefits. That QME report is admissible on disputed medical issues along with treating physician reports [see Labor Code §§ 4060, 40614062, 4062.2, 4062.3, 4062.5[FN1]].


One unintended consequence of the new medical legal procedure is that the parties, now deprived of their ability to select their own medical-legal examiners, often seek a tactical advantage by attempting to disqualify panel QMEs from reporting in a particular case who are thought to be too pro-injured worker or too pro-employer. Although the statutes provide a framework for selecting AMEs and QMEs, they are not so comprehensive and detailed as to eliminate all ambiguities in the procedure for selecting and disqualifying medical examiners. Thus, the statutes do not preclude parties from doctor shopping by resorting to procedural maneuvers and hypertechnical objections to inconsequential deviations from the prescribed procedure. > Read more subscribers can link to the cases and other citations in this article. Be sure that you're logged into your account.

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PDLEach week we report one or two panel decisions that we're considering for the LexisNexis® services:
NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter (see below).

Medical-Legal Procedure; Qualified Medical Evaluators; Time to Submit Supplemental Reports. WCAB denied defendant's petition for removal from WCJ's order allowing a new panel of QMEs pursuant to 8 Cal. Code Regs. § 38(a) based upon panel QME's failure to render supplemental report in connection with applicant's 7/11/2009 injury to musculoskeletal and nervous systems within 60 days of the request as required under 8 Cal. Code Regs. § 38(h), when there was no explanation to justify delay, and WCAB found that public policy required a quick resolution of issues, thereby supporting issuance of a new QME panelSee Lloyd panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 4/7/2011 - recent arrests, charges, convictions, investigations. Read it.

Cal Comp CasesCal. Comp. Cases April Advanced Postings (4/6/2011). Read it.
Shaw Jacobsmeyer NEW VERSIONLabor Code § 4558 (Power Press Exception) Clarified - Labor Code § 4064 "Nugget", by Richard M. Jacobsmeyer, Esq. Read it.
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CA: 52% of Californians Support Federal Health Care Reform Law.

CA: Bickmore Risk Services Names John C. Duncan as Sr. VP Governmental and Regulatory Affairs.

CA: Wanda Ogilvie Substitutes in Mark Gearheart as Her Attorney.

CA: SB 684 Would Clarify Venue for Workers Comp Insurance Dispute Resolution, Arbitration Clauses.

CA: WCIRB Submits Informational Filing, Foregoes 40% Pure Premium Rate Increase Request.

CA: SB 575 Would Close Loopholes in Workplace Smoking Laws.

US Secretary of Labor Appoints 15 Members to Maritime Occupational Safety and Health Committee.

Insurers Support Reform of Longshore Act.

AIA Praises Reintroduction of Longshore Act Amendment.

AmFed National Insurance Co. Founder and CEO Retires.

Crawford & Company Promotes Stevenson and Powers to Associate General Counsel Positions.

NCCI Posts 2011 Annual Workers Compensation Issues Report.

Study Links Working Long Hours to 67% Increase Chance of Heart Disease.

Lloyd's Report on Bedbugs, Need for Review of Liability Risks.

Obama Administration Files Appeal to Judge Vinson's Ruling on Federal Health Care Reform Law.

US Senate Repeals Tax Reporting Requirement for Businesses in Health Care Reform Act.

Workers Comp TV Pilot to Shoot at Fictitious Pinnacle Workers Comp Insurance Company.

Workers Comp TV Sitcom Lands Soprano's Star David Proval.

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rule 38, continued...

r38The Administrative Director of DWC adopted regulations in 2009 to clarify the statutory procedure for medical discovery [see Cal. Code Regs., tit. 8, § 30 et seq.], but ambiguities and omissions remain. No regulation, moreover, can anticipate and prescribe a plan to deal with all conceivable factual circumstances. Ironically, some practitioners and workers' compensation judges have noted a marked increase in conflicts and litigation concerning the medical-legal selection and reporting procedure since the rules were adopted.


Section 38 of the Administrative Director's Rules [Cal. Code Regs., tit. 8, § 38] which governs medical evaluation time frames and extensions of those timeframes, is illustrative of the problem. The Workers' Compensation Appeals Board (WCAB) has not yet issued an en banc decision to interpret and clarify rule 38, but two recent decisions of three-commissioner panels which have been published in the weekly LexisNexis Workers' Compensation eNewsletter (California Edition) have shed light on how rule 38 can be interpreted.[FN2]


In Gwen Lloyd v. County of Alameda (reported above[FN3]), a panel of commissioners denied the employer's petition for removal of the decision of the workers' compensation judge that a new panel of QMEs was warranted under subdivision (a) of rule 38 because the QME had failed without explanation to issue a supplemental report within 96 days of the request by the employer for a supplemental report after review of medical records furnished by the employer. The injured worker argued that the QME had failed to issue a report within the 30-day period from the date of an "initial or followup" comprehensive medical-legal evaluation specified in subdivision (a) of rule 38 for the issuance of a QME or AME report, and therefore, the QME should be disqualified and a new panel issued so that the parties could select a new QME. The employer argued, however, that subdivision (h) of rule 38, which specifies a 60-day time frame for the issuance by a QME or an AME of a "supplemental" report from the date the report is requested does not specify a remedy when the physician does not issue a report within the time frame.


The workers' compensation judge observed that it was not clear to her whether the "followup" report referred to in subdivision (a) was intended to be the same as the "supplemental" report  specified in subdivision (h), but concluded, nevertheless, that since the report requested by the employer had been delayed for 96 days without explanation or indication that a report was forthcoming, the policy consideration of providing an expeditious resolution of the medical disputes in the case outweighed the policy consideration of preventing doctor shopping. Therefore, the judge ordered a replacement panel of QMEs.


In Phone Senenoi v. Nor Cal Metal Fabricators and State Compensation Insurance Fund (reported in the eNewsletter of February 28, 2011),a panel of the WCAB affirmed the decision of a workers' compensation judge denying the injured worker's request to disqualify an AME for failing to issue a supplemental report requested by the worker within 60 days of the request. The judge and the panel concluded that the appropriate way to proceed would be to depose the AME. The WCAB stated as follows in its Opinion:


"We have considered the allegations of the Petition for Removal and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in said report which we adopt and incorporate, we will deny removal.


"We concur with the WCJ that applicant has not demonstrated that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10843.) As an Appeals Board panel has previously held, the only express consequence of an AME's failure to issue a supplemental report within 60 days (see Cal. Code Regs., tit. 8, § 38(h)) is that the AME might not be reappointed as a QME by the Administrative Director (id., § 38(i). (Chiappellone v. Norcal Golden Gate Disposal and Recycling Co. (2010) 2010 Cal. Wrk. Comp. P.D. LEXIS 227.)


"While we do not rule out the possibility that a physician might not be able to continue as an AME if that physician consistently fails to comply with the parties' reasonable requests for additional information, we question whether a party can unilaterally terminate an AME agreement on this ground. Moreover, we agree that the best approach at this point would be to depose the AME.


"Furthermore, the remedy for a delinquent report is 'to request a QME replacement pursuant to section 31.5...' (Cal. Code Regs., tit. 8, § 38(a).)"


While the two panels came to opposite conclusions about whether a medical examiner should be disqualified when the physician failed to issue a supplemental report within 60 days of the request, a guiding principle, if not an invariable rule, can be inferred from the WCAB's decisions. In each case, the WCAB apparently weighed the equities and competing policy concerns of preventing doctor shopping and providing expeditious justice rather than applying a strict rule requiring disqualification of the medical examiner for violation of the 60-day time frame specified in subdivision (h) for supplemental reports. Furthermore, the panel in Senenoi seems to have given great deference to the parties' agreement to use an AME, noting disapproval of a unilateral attempt by one party to disavow the AME when that party had expressed dissatisfaction with the conclusions of the AME in her initial report. The two cases can be seen as an indication to the workers' compensation community that the WCAB will look to the particular circumstances of a medical examiner's delay in issuing a supplemental report beyond the 60-day time frame specified in rule 38 and consider the equities so as to discourage attempts to engage in doctor shopping based on a medical examiner's failure to strictly comply with time frames, particularly were delays are inconsequential.



1.  If the worker is not represented, the worker selects the QME from the panel. (See Labor Code § 4062.1)

2. Rule 38 provides in pertinent part as follows:

"§ 38.  Medical Evaluation Time Frames; Extensions for QMEs and AMEs

"(a) The time frame for an initial or a follow-up comprehensive medical-legal evaluation report to be prepared and submitted shall not exceed thirty (30) days after the QME, Agreed Panel QME or AME has seen the employee or otherwise commenced the comprehensive medical-legal evaluation procedure. If an evaluator fails to prepare and serve the initial or follow-up comprehensive medical-legal evaluation report within thirty (30) days and the evaluator has failed to obtain approval from the Medical Director for an extension of time pursuant to this section, the employee or the employer may request a QME replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations. Neither the employee nor the employer shall have any liability for payment for the medical evaluation which was not completed within the timeframes required under this section unless the employee and the employer each waive the right to a new evaluation and elect to accept the original evaluation, in writing or by signing and returning to the Medical Director either QME Form 113 (Notice of Denial of Request For Time Extension) or QME Form 116 (Notice of Late QME/AME Report - No Extension Requested) (See, 8 Cal. Code Regs. §§ 113 and 116)...

"(h) The time frame for supplemental reports shall be no more than sixty (60) days from the date of a written or electronically transmitted request to the physician by a party. The request for a supplemental report shall be accompanied by any new medical records that were unavailable to the evaluator at the time of the original evaluation and which were properly served on the opposing party as required by Labor Code section 4062.3. An extension of the sixty (60) day time frame for completing the supplemental report, of no more than thirty (30) days, may be agreed to by the parties without the need to request an extension from the Medical Director."

3. The eNewsletter reports a few panel decisions each week selected from those that will be accessible in the LexisNexis California WCAB Noteworthy Panel Decisions database (subscription required).


© Copyright 2011 LexisNexis. All rights reserved. 


Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.

enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to [email protected].

April 4, 2011
March 28, 2011

March 21, 2011

March 17, 2011 (Special Alert)

March 14, 2011

March 7, 2011

February 28, 2011
February 21, 2011
February 14, 2011
February 7, 2011
January 31, 2011

January 24, 2011 (addendum)
January 24, 2011 

January 17, 2011 

January 10, 2011 

January 3, 2011



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