ADJ12656490 · April 11, 2022

The Appeals Board found that the parties remain bound by the AME agreement per Labor Code section 4062.2(f) which prohibits unilateral withdrawal from the AME agreement without mutual written consent, and ordered discovery to continue with Dr. Shalom.

From the decision · page 11Applicant contends in his answer that there must be a dispute pursuant to section 4062(a) before proceeding with a medical-legal evaluation. (Lab. Code, § 4062(a).)4 Section 4062(a) outlines the process to object to a medical determination by a treating physician in order to trigger the QME panel request process per section 4062.1 (unrepresented) or section 4062.2 (represented). (Lab. Code, § 4062.1, 4062.2.) Section 4062.2(f) permits the parties to agree to an AME "at any time" and expressly prohibits a QME panel request per section 4062.2(b) where the parties have already agreed to submit an issue to an AME. In other words, the parties forwent the QME panel request process per sections 4062 and 4062.2(b) when they agreed to submit the issue to an AME. Therefore, we will grant defendant's Petition as one seeking reconsideration, rescind the F&O and issue a new decision finding that applicant remains bound by the agreement to use Dr. Shalom as an AME in neurology. The parties will be ordered to proceed with discovery utilizing Dr. Shalom. The new decision will retain the parties' trial stipulation to injury AOE/COE to certain body parts. (See Lab. Code, § 5702; see also County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114 [65 Cal.Comp.Cases 1].)

The parties agreed to use Dr. Daniel Shalom as the AME in neurology.

Favours Defendant prevailed

This agreement triggered the application of Labor Code section 4062.2(f) prohibiting unilateral withdrawal from the AME agreement.

From the decision · page 8On October 22, 2020, applicant sent an email to defendant stating: "Michael kassman [sic] for neuro?" (Defendant's Exhibit A, Emails between applicant attorney and defense attorney, October 23, 2020.) The following day, defendant's attorney emailed in response: "Here is the list. Let me know any you would agree to. Otherwise we could simply stipulate to a second panel in Neurology. As I understand Wayne Anderson is not serving as a QME anymore." (Id.) Applicant responded the same day by email saying "shalom?" (Id.) On October 29, 2020, defendant sent an email to applicant's attorney stating: "I have authority for Dr. Shalom as an AME in neurology." (Defendant's Exhibit B, Emails between applicant attorney and defense attorney, October 29, 2020.) Applicant responded that day by saying "Great." (Id.)

Applicant sought to withdraw from the AME agreement before any evaluation with Dr. Shalom took place.

Favours Defendant prevailed

The Appeals Board rejected the argument that withdrawal was permitted before evaluation under the statute and prior panel decision Yarbrough, finding the statute prohibits unilateral withdrawal without mutual consent.

From the decision · page 12Applicant in this matter wishes to withdraw from the agreement to use Dr. Shalom as an AME. The record reflects that the parties agreed to use Dr. Shalom as an AME in neurology, but no evaluation with Dr. Shalom had taken place before applicant withdrew from this agreement. There was only one day between the AME agreement and applicant's request to withdraw from it. Per the language of section 4062.2(f) and the analysis in Yarbrough, applicant should be permitted to withdraw from the agreement to an AME.

The parties agreed to use Dr. Daniel Shalom as the AME in neurology; no evaluation had taken place before applicant sought to withdraw from the agreement.

The Appeals Board found that the AME agreement with Dr. Shalom was binding and that unilateral withdrawal was not permitted under Labor Code section 4062.2(f).

From the decision · page 7Defendant sought removal of the Findings of Fact, Order and Opinion on Decision (F&O) issued by the workers' compensation administrative law judge (WCJ) on June 15, 2021.1 By the F&O, the WCJ found that applicant's request to withdraw from the agreement to use Dr. Daniel Shalom as the agreed medical evaluator (AME) was in good faith and with sufficient advance notice to not cause prejudice to defendant. The WCJ further found that applicant's request to withdraw from the AME agreement did not violate Labor Code2 section 4062.2(f) as it was made before Dr. Shalom evaluated applicant. (Lab. Code, § 4062.2(f).) It was ordered that applicant's request to withdraw from the AME agreement was granted.

Labor Code section 4062.2(f)

Labor Code section 4062.2(f) prohibits unilateral withdrawal from an AME agreement without mutual written consent.

The Appeals Board applied this statute to find that the parties remain bound by the AME agreement and that discovery must continue with Dr. Shalom.

From the decision · page 4Code, § 4062.2(a) ["Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section."].) There are only two methods provided in section 4062.2 to obtain a medical-legal evaluation: through a party's request for a qualified medical evaluator (QME) panel or by an agreement between the parties to use an AME. These are either/or paths to medical-legal discovery. As discussed in the Opinion, the parties are precluded from requesting a QME panel if they have agreed to an AME. If the parties are not proceeding with a medical-legal evaluation with an AME, the only other avenue to obtain a medical-legal evaluation is through a QME panel. However, a party cannot request a panel if they have an AME agreement in place per section 4062.2(f) and the AME agreement may only be cancelled by mutual written consent. Trapping the parties in a discovery catch-22 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.)

Applicant's request to withdraw from the AME agreement was made before any evaluation with Dr. Shalom took place.

From the decision · page 12Applicant in this matter wishes to withdraw from the agreement to use Dr. Shalom as an AME. The record reflects that the parties agreed to use Dr. Shalom as an AME in neurology, but no evaluation with Dr. Shalom had taken place before applicant withdrew from this agreement. There was only one day between the AME agreement and applicant's request to withdraw from it. Per the language of section 4062.2(f) and the analysis in Yarbrough, applicant should be permitted to withdraw from the agreement to an AME.