Proposed En Banc Decision May Lead to Increased Litigation

The Appeals Board has issued a proposed en banc decision addressing whether the original panel QME or AME must be used to address subsequent dates of injury. In Ismael Navarro v. City of Montebello, the Appeals Board proposed holding the Labor Code does not require an applicant to return to the same panel QME for a subsequent claim of injury. The Appeals Board also proposed holding the Rule 35.5(e) requirement that an applicant return to the same evaluator when a new injury is claimed involving the same parties and body parts is inconsistent with the Labor Code and therefore invalid. The Appeals Board granted the DWC and parties 20 days to address the issues raised by the proposed holding.

This proposed decision will likely increase litigation.  A party that is unhappy with the original panel QME or AME will now get a second bite at the apple in the case of a subsequent injury.  This will encourage filings of additional injuries.  Different evaluators are likely to come to different opinions on permanent disability and apportionment, which will complicate settlement of claims.  Evaluators also often identify new cumulative trauma injuries that have not been formally claimed.  This decision would allow either party to select a new panel QME to evaluate the newly identified cumulative trauma.  The WCAB already spends a substantial amount of time addressing panel QME requests and the resulting disputes.  It appears the WCAB will be allocating even more time to these issues should this decision become final.

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