No New Panels For Injuries Already Claimed at Time of First QME
Today we cover the panel case of Parker v. DSC Logistics. Covering everyone’s favorite topic, this case was – again – litigated, appealed, and reversed. That topic, of course, is what clogs up the Boards, runs up the billable hours, and makes workers’ comp such a busy bee-hive of activity: a panel dispute!
Applicant filed a claim alleging injury to the neck and back. The claim was denied. Applicant then filed two additional claims, one for a specific and another for a CT. Although the dates of injury were different, the parties remained the same – same applicant, same employer, same insurer.
Defendant beat applicant to the punch, obtaining an orthopedic panel. Applicant then underwent an exam with a QME from this first panel, and then requested two additional panels based on the two additional cases.
Defense counsel, not wanting to pay for two additional QME exams, have two additional opinions (from non-orthopedic panels) in the record, or delay the case to afford two additional medical practitioners to send each other letters competing over who can give the injured worker the highest rating of PD coupled with the lowest work restrictions.
So, away went the olive branches and out came the trial briefs of war – applicant presented a passionate case: MORE MONEY! Defendant also presented a well-reasoned argument: the Navarro case already holds that you don’t get a new panel for every claim you allege, especially when a claim has already been filed and applicant was already seen by a QME.
The commissioners relied on section 4062.3(j) and 4064(a) for the proposition that the QME must address “all medical issues arising from all injuries reported on one or more claim forms.”
Accordingly, the commissioners interpreted Navarro to require applicant return to the same QME for all injuries already claimed at the time of the first examination.
Some thoughts here – why would applicant want additional QME examination?
First off, it is in applicant’s interest to make the claim as expensive as possible. Why? Because the more pain an applicant can inflict on a defendant, even if the money does not go directly to the applicant, the more benefit the defendant sees in closing the file, increasing the justifiable settlement authority. Additionally, with every single opinion entered into the equation, applicant creates more and more uncertainty as to which of the opinions would be adopted, as well as more grounds for appeal and delay of file closure. If one’s case is weak, delay is a good thing, after all. So, of course, this is a fairly good result for those brave practitioners on the defense side – outnumbered, if not outgunned by the applicants’ bar.