Understanding the Legal Framework for Amended Claims and QME Evaluations
As workers' compensation attorneys, we frequently encounter situations where clients amend their claims to include additional body parts, only to be met with silence from the employer or claims administrator. This scenario raises important questions: How long must we wait for a response? What are the legal implications of an employer's silence? And most critically, how can we ensure our clients receive proper medical-legal evaluations for these disputed body parts?
Based on extensive research of Sullivan on Comp and relevant case law, I'd like to share some key insights that may help you navigate these challenging situations.
The 90-Day Rule Does NOT Apply to Amended Claims
First and foremost, it's crucial to understand that the 90-day rule under [LC § 5402] does not apply to amended claims that add new body parts. The appeals board has consistently held that "an amended claim form alleging new injury to new parts of the body does not trigger a new period for rejecting a claim of injury."
In Clark v. WCAB (2001), an employee initially filed a claim for a left knee injury that was accepted. Later, when the employee filed another claim form adding back and spine injuries, the appeals board held that the amended claim did not trigger a new 90-day period for rejection.
Similarly, in Swope v. WCAB (2003), the appeals board concluded that because the employer accepted injury to the employee's hand and arm, it was not required to deny her later claims to the neck and back within 90 days.
Employer Silence ≠ Acceptance
When an employer doesn't respond to amended claims, their silence does not constitute acceptance of the additional body parts. There is no presumption of compensability that applies to these amended claims, and the employer retains the right to contest the additional body parts at any time.
However, this doesn't mean our clients are without recourse. The employer still has a duty to investigate all claims made and provide benefits in a timely manner for legitimate claims. Unreasonable delays could result in penalties under [LC § 5814]..
Legal Basis for Requesting QME Evaluations
The good news is that we have clear legal authority to request QME evaluations for disputed body parts, even when the employer doesn't respond. This authority stems from several key provisions:
- [LC § 4060]: Allows either party to request a QME panel "at any time" after the filing of a claim form to determine compensability.
- [LC § 4062.1] and [LC § 4062.2]: Provide the procedures for unrepresented and represented employees, respectively, to request QME panels.
- [8 CCR § 31.7]: Specifically addresses procedures for obtaining additional QME panels in different specialties when multiple body parts are involved.
The WCAB en banc decision in Mendoza v. Huntington Hospital (2010) 75 CCC 634 further confirms that either party may request a QME panel "at any time" after the filing of a claim form. The board explicitly rejected the notion that employers are the only ones who need to obtain medical-legal evaluations to resolve issues of compensability.
Practical Strategies for Moving Forward
When faced with an employer's silence regarding amended claims, consider the following approach:
- Wait a Reasonable Time: While there's no mandatory waiting period, giving the employer about 30 days to respond is generally reasonable.
- Document Non-Response: Keep detailed records of all attempts to communicate with the employer about the amended claims.
- Request QME Evaluations:
- For represented clients: Submit an electronic request for a QME panel through the DWC website pursuant to [LC § 4062.2].
- For unrepresented clients: Submit a request for QME panel using form QME 105 pursuant to [LC § 4062.1].
- For Additional Specialties:
- For represented clients: Either submit a written agreement with the defendant stating there is a need for an additional QME in a different specialty, or file a petition with the WCAB requesting an order for a QME panel in a different specialty.
- For unrepresented clients: Consult with an Information & Assistance (I&A) officer to explain the need for additional QME evaluators in other specialties.
- Consider WCAB Petition: If the employer is completely non-responsive, petition the WCAB to conform the pleadings to proof and request an order for additional QME panels in the appropriate specialties.
Important Legal Principles to Remember
- An applicant need not establish causation to disputed body parts before requesting QME panels for those body parts.
- Additional QME panels may be requested even if the disputed body parts were never evaluated by the primary treating physician.
- Defendants who refuse in bad faith to agree to an additional panel may be sanctioned pursuant to [LC § 5813].
- If treatment is prescribed for a disputed body part that a physician has found to be industrial, the defendant must timely initiate the AME/QME procedure under [LC § 4062(a)].
Conclusion: Don't Let Employer Silence Stall Your Case
When employers don't respond to amended claims adding new body parts, it can be frustrating for both attorneys and clients. However, understanding that this silence neither constitutes acceptance nor prevents us from moving forward is crucial.
By leveraging the legal framework provided by [LC § 4060], [LC § 4062.1], [LC § 4062.2], and [8 CCR § 31.7], we can ensure our clients receive proper medical-legal evaluations for all claimed body parts, regardless of the employer's response or lack thereof.
Remember, the burden remains on our clients to prove that the additional body parts are industrially related to the original injury, but obtaining appropriate QME evaluations is a critical step in meeting that burden. Don't let employer silence stall your case – take proactive steps to move the medical-legal evaluation process forward.
Have you encountered situations where employers don't respond to amended claims? What strategies have you found effective in moving these cases forward?