Ismael Navarro

In this en banc decision, defendant City of Montebello sought removal from a WCJ's Findings of Fact holding that applicant police officer Ismael Navarro was entitled to a new panel QME for his two subsequent specific injury claims and that Rule 35.5(e) did not apply. Applicant had been evaluated in 2009 by panel QME Dr. Yogaratnam for an earlier cumulative trauma claim, and defendant argued that because all three claims involved the same parties and overlapping body parts, Rule 35.5(e) required applicant to return to the original panel QME. The Appeals Board granted removal and issued a notice of intention to hold that the Labor Code does not require an employee to return to the same panel QME for a subsequent claim of injury, and that the additional requirement imposed by Rule 35.5(e) is inconsistent with the Labor Code and therefore invalid. The Board reasoned that the statutes require an evaluator to address all injuries reported on claim forms before the evaluation, but contain no provision requiring return to the same evaluator for injuries reported after an evaluation. The Board gave the DWC and parties 20 days to respond to its proposed holdings before issuing a final decision.