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Cancelling An AME Agreement

Agreed Medical Evaluators (AMEs) have an important role in resolving discovery disputes in the workers' compensations system. Rather than relying on a panel of qualified medical evaluators (QMEs) randomly selected by the Medical Unit, the parties mutually may agree on an AME to resolve any disputed medical issues.

There is a presumption that AMEs are chosen because of their expertise and neutrality. So an AME's opinion ordinarily is followed unless there is a good reason to find the opinion unpersuasive. (Power v. WCAB (1986) 179 Cal. App. 3d 775, 782.)

Because an AME's opinion is given great weight in the workers' compensation system, their counsel is permitted only when an employee is represented by an attorney. (Labor Code § 4062.1(a)).) The Legislature obviously adopted this rule to prevent employers from taking advantage of workers who might be unfamiliar with the workers' compensation system and the doctors within it.

If an employee is represented, LC 4062.2(f) generally allows the parties to agree to an AME "at any time." They can agree to an AME after a QME panel is issued or even after a QME has evaluated the injured worker

LC 4062.2(f) also protects agreements to proceed to an AME. It states, "A panel shall not be requested pursuant to subdivision (b) on any issue that has been agreed to be submitted to or has been submitted to an agreed medical evaluator unless the agreement has been canceled by mutual written consent." So, the express terms of the statute indicate that if the parties agreed to submit an issue to an AME, a party may not unilaterally terminate the AME agreement –– there must be "mutual written consent" from both parties to cancel an AME agreement.

In Yarbrough v. Southern Glazer's Wine and Spirits (2017) 83 CCC 425, however, the appeals board interpreted the statute as protecting AME agreements only after an evaluation was conducted. It stated that "section 4062.2(f) deals only with withdrawal from an AME after submitting to an AME evaluation. Nothing in section 4062.2(f) precludes a party from withdrawing from an AME before submitting to an AME evaluation." In that case, the board allowed an applicant unilaterally to withdraw from an AME agreement because she had not yet been evaluated by the AME.

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Recently, in Bonnevie v. Fox Studio Lot (2021) 2021 Cal. Wrk. Comp. P.D. LEXIS 247, the WCAB revisited the issue, and the panel majority disagreed with Yarbrough. The panel majority held that an applicant could not withdraw from an AME agreement even though the physician had not evaluated him. The majority explained that under LC 4062.2(f), a party could not unilaterally withdraw from an AME agreement if either: (1) the parties agreed to submit an issue to an AME or (2) the issue has been submitted to an AME. It concluded that because only the applicant wished to withdraw from the AME agreement, there was no mutual consent between the parties. The dissenting commissioner, however, maintained that pursuant to the opinion in Yarbrough, § 4062.2(f) does not preclude a party from withdrawing from an AME before submitting to that evaluation.

The cases create a split regarding how LC 4062.2(f) should be interpreted. This writer agrees with the majority's opinion in Bonnevie: The statute directs that an AME agreement may be canceled only by mutual written consent "on any issue that has been agreed to be submitted to" an AME and not just when an issue has been submitted to an AME. As noted in Bonnevie, the panel in Yarbrough ignores the language from § 4062.2(f).

Neither case is binding, and the issue probably requires further clarification from the appeals board. Because AMEs are favored in the workers' compensations system, however, this writer anticipates that the appeals board will follow Bonnevie moving forward. For further discussion on the use of AMEs, see Section 14.29 Medical-Legal Process –– Represented Employee.

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