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ADJ12430291 — California WCAB decision · SimilarCase

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California WCABPanel decision

ADJ12430291 · March 6, 2024

Findings and Order of August 26, 2022, affirmed except amended to allow applicant to proceed with a new QME evaluation; issue of injury AOE/COE deferred

Issues decided: 1
Medical opinions weighed: 1
Authorities named: 1
District office: Riverside

What the panel ordered

Findings and Order of August 26, 2022, affirmed except amended to allow applicant to proceed with a new QME evaluation; issue of injury AOE/COE deferred

Petition for Reconsideration granted to further study factual and legal issues; WCJ Findings and Order issued August 26, 2022, reviewed

Read the official decision →

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

QME/AME processApplicant prevailedmultiple body parts

The Appeals Board held that an employee is entitled to a new QME evaluation for a subsequent claim of injury and that the requirement to return to the same evaluator is invalid under the Labor Code and Navarro en banc precedent. The applicant was not estopped from obtaining a new QME despite attending a prior evaluation with Dr. Shah, who was not the selected QME for this claim.

From the decision · page 5Here, the WCJ found that applicant was "doctor shopping" and thus, was not entitled to a new evaluation in this case. We addressed this issue directly in the Navarro decision:

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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Applicant filed a subsequent claim form on August 6, 2019, for cumulative injury to thigh, knee, ankle, and foot.

Favours Applicant prevailed

This filing triggered entitlement to a new QME evaluation under Labor Code sections 4062.3(j) and 4064(a) and Navarro precedent.

From the decision · page 2Applicant subsequently claimed to have sustained a cumulative industrial injury through August 16, 2018, to his thigh, knee, ankle, and foot in ADJ12430291, with a DWC-1 claim form filed on August 6, 2019.3 (Application for Adjudication, ADJ12430291, January 27, 2020.)

Applicant attended an evaluation with Dr. Shah, who was not the selected QME for this claim and not an AME; defendants knew this and proceeded at their own peril.

Favours Applicant prevailed

Applicant's attendance at the evaluation does not bar entitlement to a new QME; defendants' knowledge negates estoppel.

From the decision · page 6It is universally recognized that prerequisites to applicability of the doctrine of equitable estoppel are that the party asserting the estoppel must have been ignorant of the true facts and must have relied upon the words or conduct of the adverse party to his or her detriment. (Hurwitz v. Workers' Comp. Appeals Bd., (1979) 97 Cal. App. 3d 854, 874 (emphasis added).) Applicant is not estopped. Defendants knew that Dr. Shah was not the selected QME in this matter. Defendants knew that Dr. Shah was not an AME. Defendants proceeded at their own peril in setting the appointment with Dr. Shah. Applicant's agreement to attend the evaluation does not bear on the issue of whether applicant is entitled to another QME or bar applicant from obtaining a QME. When a new claim form is filed after a QME evaluation has occurred, we recommend that the parties discuss whether they wish to seek an express agreement to use an AME or intend to obtain a new QME. In short, the parties should not proceed on assumption. Here, defendant alleges that applicant obtained another QME panel three days before taking the deposition of Dr.