The WCAB ruled the Labor Code does not require an employee to return to the same panel QME for evaluation for an injury that occurred subsequent to the initial evaluation and that the requirement in rule 35.5 (e) that an employee shall return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is invalid because it is inconsistent with the Labor Code.
Navarro v. City of Montebello (BPD) (42 CWCR 61):
The WCAB initially issued a notice of intention to make this ruling and is now followed by the actual decision.
The WCAB pointed out that LC 4062.3 (k) provides that if, after a medical evaluation is prepared, the employer or the employee subsequently objects to any new medical issue, the parties, to the extent possible, shall use the same medical evaluator who prepared the previous evaluation to resolve the medical dispute.
There is no reference in LC 4062.3 (k) two subsequent claims of injury.
LC 4067 states that if the jurisdiction of the Appeals Board is invoked pursuant to LC 5803 on the ground that the effects of the injury have reoccurred, increase, diminish, or terminated, a formal medical evaluation shall be obtained and that the subsequent are additional formal medical evaluation shall be conducted by the same AME or QME, unless the WCJ has made a finding that he or she did not rely on the prior evaluators formal medical evaluation, any party contested the original medical evaluation by filing an application for adjudication, the unrepresented employee hired an attorney and selected a qualified evaluator to conduct another evaluation pursuant to (b) of section 4064, or the prior evaluator is no longer qualified or readily available to prepare a formal medical evaluation.
The WCAB pointed out that neither LC 4062.3 (k) nor LC 4067 contains a reference to subsequent claims of injury, and reasoned that the Labor Code requires that all medical-legal evaluation be obtained as set forth in LC 4062.1 or 4062.2, and the evaluator must discuss all medical issues arising from all reported claims of injury at the time of an evaluation and an employee is generally required to return to the original evaluator in a new medical issue arises in the same claim of injury and when an employee reopens the same claim.
The WCAB saw no requirement that an employee return to the same evaluator for subsequent claim of injury, nor any provision that distinguishes between procedures for a valuation of claims of injury based on the same or different body parts.
WCAB concluded there was no requirement that an employee return to the same evaluator for a subsequent injury.
The WCAB next concluded the requirement of rule 35.5 (e) then the employee return to the same evaluator when a new injury or illness is claimed involving the same parties in the same type of body parts was inconsistent with the cited statutes and was therefore invalid.
The WCAB affirmed the WCJ’s order finding that the applicant could obtain a new QME or AME for an injury that occurred subsequent to the original AME or QME examination.