Seeking to plug the dike to prevent a deluge of litigation, the WCAB has issued another en banc in the Messele case.

Let's call it Messele Dos.

After the recent Messele Uno case, the workers' comp community has been rife with commentary about whether prior panel QME appointments might have been procedurally invalid and subject to challenge.

The Division of Workers' Compensation took this seriously enough to publish an advisory newline on the subject, outlying its position on how challenges to previously issued QME panels would be handled.

The WCAB has responded. In a unanimous opinion, the WCAB has announced its intent to modify Messele Uno. Unless persuaded otherwise by written comments within the next several weeks, Messele Uno will be prospective only.

Challenges to QME panels on the basis of prematurity filed before Messele Uno (i.e. before September 26, 2011) could still be maintained. But the Appeals Board clearly wishes to avoid a "landslide of reopening". Therefore, the WCAB notes that ..."our September 26, 2011 decision would not constitute good cause to reopen any order, decision, or award."

Among those who called for Messele Uno to be prospective only was the CAAA amicus committee.

Although some particular claimant might seek to have the decision applied retroactively, the realities of the system make Messele Dos good policy.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

It may not turn out to be that big of a deal.

But recently there has been a lot of commentary in the comp community on the effects of the recent WCAB Messele en banc decision, known as Tsegay Messele v. Pitco Foods:
http://www.dir.ca.gov/wcab/EnBancdecisi ... Tsegay.pdf

Non-lawyers will find the decision to be of the "how many angels can dance on the head of a pin" variety.

At first blush it would appear that the Messele decision would have little importance in the comp system. It clarifies how long parties must wait after offering an AME before they can request a panel QME.

That's an issue that affects mainly those cases where the lawyer believes it's important to "win the race" to pick the medical specialty of the QME. And not all lawyers would agree that it's even that important to "win the race" to control the type of doctor who does the evaluation, although some lawyers swear by this strategy.

The decision simply clarifies the procedures and time frames under the DWC's QME process. That's to everyone's benefit to have a more transparent process.

But what's got many stakeholders and commentators atwitter?

It turns out that the Messele decision may be applied retroactively. And if so, some QME reports may be invalid. Doctors might not be paid for evaluations done and reports rendered. Parties might be entitled to another QME panel.

As you can imagine, this might prove to be a strategic advantage to some parties who are unhappy with a QME report if they can demonstrate that the party requesting the panel did not wait until the 16th day from the AME proposal.

Yet, if there are lots of such cases (the number of which is unknown), the system could get further bogged down.

Here is the text of a DWC "Newsline" issued on October 27, 2011 setting forth how the DWC plans to deal with the issue:
"The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Messele v. Pitco Foods Inc. Cal. Wrk. Comp. LEXIS 144, on Sept. 27, 2011. The decision concerns the number of days the parties in a represented case must wait after an agreed medical evaluator (AME) proposal is mailed before requesting a qualified medical evaluator (QME) panel from the Medical Unit. In Messele v. Pitco Foods the WCAB held (1) when the first written AME proposal is mailed or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; and (2), the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day."

The DWC announcement says that :
"Effective immediately, the Medical Unit will only issue panels that comply with the holding in Messele v. Pitco Foods Inc. In reviewing panel requests currently on file, if a panel request is found by the Medical Unit to have been filed prematurely, the unit will send a letter to the parties indicating their request will not be filled because it was filed prematurely pursuant to Messele v. Pitco Foods."

"Panels that were previously issued, where the panel request was filed with the Medical Unit prematurely pursuant to Messele v. Pitco Foods, will be handled in the following manner:"

"Where a panel was issued and a QME evaluation was conducted by a doctor selected from the panel the parties should seek a court order from a workers’ compensation judge indicating that the medical evaluation was improperly procured under Messele v. Pitco Foods Inc. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced (The panel number appears on the list of QME’s previously sent)
A copy of the order issued by the board
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
Where a panel was issued but no QME evaluation was conducted, the Medical Unit will issue a new panel if a filer establishes the panel request complies with Messele v. Pitco Foods. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced. (The panel number appears on the list of QME’s previously sent.)
In the cover letter please indicate the date of service of the original AME offer letter and the date of service of the original form 106
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
In these circumstances, the Medical Unit is requesting filers to provide additional information beyond what would ordinarily be required to issue a QME panel to facilitate the panel process."

As part of the DWC Newsline there is a "practice pointer":

"To facilitate the review process at the Medical Unit and beyond, clearly indicate the nature of the dispute for which you are requesting a panel in the AME proposal letter or the cover letter that sometimes accompanies the panel request to the Medical Unit."

"The WCAB points out in footnote 11 of the decision “[a]lthough Labor Code section 4062.2(b) may not explicitly require “service” of the AME proposal, the wise practitioner will avoid any doubt as to when the first written proposal was “made” by including proof of service. (See Cal. Code Regs., tit. 8, § 10505.) Adhering to the WCAB recommendation about the AME proposal letter will help speed the review process and reduce disputes that need to be resolved."

In closing the DWC notes that :
"It is strongly recommended that litigants refrain from filing objections to the panel requests currently on file with the Medical Unit or from sending letters asking to withdraw a panel request that has been filed but not filled, except as specified above. Finally, do not file correspondence with the Medical Unit where the unit is merely being copied on the correspondence. Unnecessary correspondence detracts the processing of panel requests."

CAAA is apparently asking the WCAB to clarify Messele, making it prospective only.

That would certainly make it easier on the system. But meanwhile, in some cases applicants and defendants may identify cases where they are unhappy with panel QMEs and comb through AME offer letters, panel request letter and calendars.

Perhaps its time to junk the entire QME system anyway.

With requests to assign QMEs continually backed up at the DWC Medical Unit and disputes festering because of delays in the cumbersome system, the system is creaky at best.

There has to be a better way.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

From the it never hurts to toot your horn department of governmental affairs:

The DWC has issued a bulletin noting that they have finally cleared their backlog of QME panel requests. Between April and June 2010 they processed about 41% of the number of QME panels they processed in 2009.

You can do the math on the back of that envelope. In two months they have issued almost as many panels as in 6 months in 2009.

Seems the DWC Medical Unit (or, more likely, the higher-up powers that be) finally got the message.

There had been widespread dissatisfaction in the comp community about how the DWC Medical Unit was handling panels. Adjusters, defense attorneys, applicant attorneys, and judges all were unhappy with the slow pace of issuance of panels, particularly in represented worker cases.

Part of the problem was staffing. But a large part appears to have been the administrative philosophy. For several years the DWC Medical Unit had allowed a slew of technicalities to slow issuance of panels.

In some cases this frustrated parties who were simply seeking to move the ball down field.

While some of the delays were undoubtedly caused by ambiguities in requests or improperly filled out forms, parties found that attempts to clarify or provide supplemental information to the unit were often ignored.

Now the Medical Unit appears to be focusing on getting the panels out.
Parties who believe they have valid objections to the panels may need to seek relief from a judge at the WCAB.

Stay tuned.

Julius Young
www.boxerlaw.com

The DWC Medical Unit has been a great source of irritation in the comp community over the past few years.

Whether you speak to adjusters, defense attorneys, applicant attorneys or even judges, there has been a sense of frustration with the Medical Unit's delay in processing QME panel requests. I've heard many complaints about how items get hung up on technicalities. Correspondence to clarify or amend requests seem to fall into a black hole, never to be acknowledged.

Attorneys were increasingly forced to take up the time of judges at the WCAB seeking orders that the Medical Unit act. In a perverse twist, the Medical Unit disciplined some QMEs for failing to meet time frames (at a time when QMEs are dropping out of the system), yet completely failed to manage its affairs to get QME panels out in a timely fashion.

The QME rules were revised, but the problems remained.

Understaffed and backed up many, many months, the DWC Medical Unit has apparently decided to do less "screening" in an effort to get caught up.

New forms have been devised. Yesterday the following forms were unveiled:

Here's the new form "Additional panel request form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_7.pdf

Here's the new form "Replacement Panel Request Form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_5.pdf

Stay tuned.

Julius Young
www.boxerlaw.com

Some interesting statistics surfaced in the presentation on the QME process at this week's DWC conference.

While the Medical Unit is getting QME panel requests issued in less than a month for unrepresented workers, panels in represented worker cases are currently not issued until around 90 days from request.

Labor Code 139.2(h)(1) requires unrepresented panel requests be issued within 15 business days of receipt by the DWC Medical Unit. For represented worker panels there is no statutory timeframe but the Medical Unit has previously indicated a goal of processing those within 30 working days.

Suzanne Honor-Vangerov, manager of the DWC's Medical Unit, gave a presentation on the workload of the Medical Unit. Each month 6,600 panel requests are filled. The breakdown is as follows:
Unrepresented cases: 4,700
Represented cases: 4,100
Ordered by judges: 100
Replacement panels: 550

Honor painted a picture of a unit besieged by a huge volume of paper
(the Medical Unit is not on EAMS) that is also coping with the effects of furloughs. Apparently some Medical Unit personnel have been off on Friday furloughs but come in on Saturdays. Eventually they'll have leave time as a result.

The boxes of backlogged requests may multiply.

The situation is complicated by procedures and forms which result in many requests being kicked back. That occurs for a variety of reasons where forms are not filled out properly, supporting documentation is not attached, there is a conflict between the data in the form and the underlying documentation etc etc. Ms. Honor and DWC Legal Unit staff counsel Suzanne Marria did an admirable job of detailing the types of errors that can delay processing of requests in represented and unrepresented cases.

It's hard to fault the DWC staff, who are trying to keep the QME system flowing. One does wonder if there aren't steps that could be made to streamline the process.

What was most disturbing was word that requests for panels for workers represented by attorneys is taking 90 days. And if the request is kicked back for clarification from one or both of the parties, the wait could be much longer.

Having such a processing time differential between represented and unrepresented cases is troubling.

Yes, if there are long delays it may encourage adjusters, defense attorneys and applicant attorneys to agree on AMEs.

There are many cases where it's in the interest of the insurance carrier to get a speedy resolution. If there are disputes over TTD status or over treatment issues, employers and insurers may be prejudiced by having to wait many months for a panel to be issued. In some cases a panel is issued and there are problems with one or more of the panel docs, necessitating a replacement panel.

So if there are delays in the QME process it may give more incentive to parties to use AMEs. With AMEs in a represented case the parties have more control over scheduling. If an AME is scheduling too far out in time the parties can agree to someone else. I suspect there are many adjusters and claims managers who would be more willing to consider use of an AME if they understood the delays at the Medical Unit.

The problem is in represented cases where the parties cannot or will not agree to an AME. A wait of 90 days-or more-to even get the QME process rolling is prejudicial to many workers and to many employers.

A 90 day wait-or more-is hardly a hallmark of an expeditious, unencumbered system.

Under these circumstances I believe that many attorneys will start getting orders from a workers comp judge directing the Medical Unit to issue a panel promptly. If the unit is too swamped to comply expeditiously (some of these orders may require Medical Unit compliance in a designated timeframe) judges may allow the defense attorney and applicant attorney to bypass the process altogether. Ultimately the WCAB has jurisdiction on what medical evidence it will allow, particularly if the parties stipulate to the admissibility of evidence.

Either the DWC needs to devote more staff resources to the unit or the
QME request procedures need to be revamped.

With the Schwarzenegger-appointed DWC administration headed towards its final hurrah, it's not clear this is a priority. But this DWC administration or the next needs to address these problems, which may only grow worse.

Julius Young
www.boxerlaw.com