Request for a Replacement Panel Pursuant to Romero

The Labor Code describes different procedures for requesting a panel of qualified medical evaluators (QMEs). Labor Code § 4062.1 controls the procedure by which parties may obtain a medical evaluation to address a disputed issue pursuant to LC 4060, LC 4061 and LC 4062 when the employee is not represented by an attorney. LC 4062.2 establishes the procedure when an employee is represented by an attorney.

Pursuant to LC 4062.1(b), either party may request a QME panel per LC 4060, LC 4061 and LC 4062 by submitting the form prescribed by the administrative director requesting the medical director to assign a panel of three QMEs. In unrepresented cases, the California Code of Regulations § 30(a)(1) states that for disputes covered by LC 4060, the requesting party must attach the claims administrator's notice that the claim was denied or a copy of the claims administrator's request for an examination to determine compensability. For disputes covered by LC 4061 or LC 4062, CCR 30(a)(2) states that "[I]f the requesting party is the claims administrator, the claims administrator shall attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician's report that is the subject of the objection and a description of the medical determination that requires a comprehensive medical-legal report."

In contrast, LC 4062.2(b) directs that when an employee is represented by an attorney, either party may request a QME panel "[n]o earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062." CCR 30(b)(1)(B) also requires a party in a represented case to submit a written request to determine compensability for disputes under LC 4060 or a written objection to a primary treating physician's report for disputes covered under LC 4061 and 4062.

So, although an objection to a treating physician's report is required for a QME panel under LC 4061 or LC 4062 when an employee is represented by an attorney, there is no such requirement for an unrepresented employee to request a QME panel under those statutes. Instead, CCR 30(a)(2) requires an objection to a treating physician only when an employee is unrepresented "if the requesting party is the claims administrator."

In Romero v. Costco Wholesale (2007) 72 CCC 824, the Workers' Compensation Appeals Board (WCAB) issued a significant panel decision holding that if a QME panel is assigned while an employee is unrepresented under LC 4062.1, but he or she has not been evaluated by a doctor from the panel, either party may request a new QME panel pursuant to LC 4062.2 after that employee retains an attorney. But given the slightly different procedures for requesting a QME panel under LC 4062.1 and LC 4062.2, if a panel is assigned while an employee is unrepresented, but he or she then retains an attorney, is a party required to ensure compliance with LC 4602.2 before requesting a replacement panel under Romero?

In Yanes v. Valley Children's Hospital, 2023 Cal. Wrk. Comp. P.D. LEXIS 138, the WCAB held that requesting a replacement panel under Romero does not require a party to restart the QME process. In that case, the defendant sent the applicant a letter accepting liability for the left knee only, and that liability for the left knee ACL findings and the need for surgery were denied based on the treating physician's opinion. While unrepresented, the applicant requested a QME panel in orthopedic surgery, but after he retained an attorney, the attorney requested a replacement panel in chiropractic. The defendant asserted that the replacement panel was invalid on the grounds the panel request letter was procedurally deficient. The WCJ concluded that to the extent the parties failed to comply with the procedural requirements defined in LC 4062.2(b), any ensuing requests for QME panels were procedurally invalid and void. But that decision was rescinded by the WCAB.

The WCAB found that the procedure for obtaining a QME panel was governed by LC 4062.1 when the applicant was unrepresented. It found that the parties did not dispute that the original panel was validly issued, and that the applicant never attended a QME evaluation with any of its physicians. The WCAB then rejected the defendant's argument that the replacement panel request was invalid because it was not made after requesting a medical evaluation under LC 4060, or after offering an objection under sections LC 4061 or LC 4062. The WCAB held that "The parties were not thereafter required to reinitiate a dispute resolution process that was already underway and had appropriately resulted in the issuance of a prior panel." It explained that "[R]equiring the parties to repeat the procedural steps necessary to obtaining a panel of QMEs once applicant obtains counsel is inconsistent with our constitutional mandate to 'accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.' (Cal. Const., art. XIV, § 4.)" The WCAB concluded that the applicant's replacement panel in chiropractic was validly obtained.

So Yanes clarifies the procedure for requesting a replacement panel under Romero after an employee retains an attorney. The parties are not required to restart the QME process by submitting a new written request to determine compensability for disputes under LC 4060 or a written objection to a primary treating physician's report for disputes covered under LC 4061 and 4062. If the original panel was validly obtained, parties may obtain a replacement panel simply by requesting one from the Medical Unit pursuant to Romero.

Because a replacement panel per Romero needn't be in the same specialty as the original panel, parties often race to obtain a replacement panel to obtain a specialty they feel best serves their interests in litigation. In Yanes, the WCAB made it faster and easier to obtain a replacement panel. For further discussion of this topic, see Sullivan on Comp Section 14.28 Medical-Legal Process –– Unrepresented Employee.