We have all become accustomed to the practice of either seeking or receiving a replacement panel request when the QME is unable to set an evaluation timely. Frankly, many practitioners have tried to use section 31.1 of the California Code of Regulations to their advantage when saddled with a QME whom they believe tends to reach conclusions that are contrary to their clients’ interests. When the doctor is unable to schedule timely, we have often looked at it as somewhat of an “automatic” situation – the doctor is unable to set on time, therefore, we are entitled to a new panel (if we so desire).
Per the regulations, the party with the legal right to schedule a QME appointment must be able to secure the date of the appointment within 90 days of the appointment request. That party may also essentially waive the 90-day requirement and allow the appointment to be scheduled up to 120 days after the date of the initial request. Either party, though, may report the QME’s unavailability and seek a replacement panel when the doctor is unable to schedule the exam within 120 days of the initial request. (All timelines, of course, may be waived by agreement of both parties).
In the Vazquez matter, the parties were seeking a re-evaluation with the QME. The fact that the QME had already seen this applicant once, though, is irrelevant to the opinion (though probably had an impact). When seeking the re-evaluation, the defendant learned the QME could not set the re-exam within 120 days. The next exam date was just beyond that limit, at 127 days. Defendant objected, seeking an entirely new panel, based solely on the proposed date of the exam. Applicant, however, objected to the request for a replacement panel, claiming the time limits only apply to initial evaluations and not to subsequent evaluations. The trial judge directed the Medical Unit to issue a replacement panel based on the 120-day requirement.
The WCAB has now issued this En Banc decision attempting to clarify the “requirement” and help promote the goal of workers’ compensation proceedings – that of “expeditious resolution.”
In short –
• Only the WCAB has jurisdiction to determine whether a replacement QME panel is valid or otherwise appropriate
• The WCAB holds – in a represented case, where a QME cannot set an appointment within the timeframes established by Rule 31.3, replacement is NOT automatic. Instead, the WCJ has discretion to order a replacement QME upon a showing of good cause.
• Five factors may be considered by the Judge in determining whether or not good cause exists:
1) The length of delay caused by the QME’s unavailability
2) The amount of prejudice caused by the delay in availability versus the amount of prejudice caused by restarting the QME process
3) What efforts, if any, have been made to remedy the QME’s availability
4) Case specific factual reasons that justify replacing or keeping the current QME, including whether a party may have waived its objection
5) The WCAB’s constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.”
• The decision applies prospectively only.
Practical Considerations:
The days of multiple replacement panel requests due to timeliness of scheduling are probably over. A Workers’ Compensation Judge is likely to rule that had the parties gone with the initial panel, the exam would have probably taken place by now – or at least in the not- too-distant future. You might as well keep it.
If we are to pursue a replacement panel due to lack of timeliness of scheduling with the first panel QME selection, this decision seems to suggest the replacement QME must be able to schedule the exam before the original QME’s length of delay. But how would the parties know that? We cannot possibly determine how long a replacement QME would take to schedule an exam if the replacement panel itself has not issued. And a replacement panel cannot issue without an order to do so. How do we truly address the period of initial delay, and whether it is causing prejudice, without going through the second panel process? And what if a party insists on a trial regarding the issue? How long do we have to wait for a Board hearing and decision? Perhaps we flip the argument – by the time a conference takes place, then a trial, then a decision, then a Reconsideration of the decision, the parties could have easily gone through a second panel process and completed the evaluation and report by now…
The WCAB suggests factor number 3 may have relevance – what efforts have been made to remedy the QME’s availability? What exactly does that mean? Are the parties’ calendar clerks supposed to insist on an earlier date when scheduling? Must our calendar clerks advise the doctor’s office that we are serious – we are going to request a replacement panel if they fail to give us a better date?
Considering factors 4 and 5 above, the WCAB does not give us any specific factual reasons that would justify replacing or keeping the current QME. The decision merely states “We cannot find that the mere passing of time is sufficient to warrant replacing the existing QME.” So, would the passing of “A LOT” of time be the determining factor? Based on this En Banc decision, perhaps the only basis for obtaining a new panel due to scheduling issues is going to be the situation where a particular QME is setting many months out. We have all come across some of the more sought after QMEs who are unable to schedule for 10 or 12 months. Without such egregious scheduling inability, though, the WCAB seems likely to cite the need to “expeditiously” move these cases….and order the parties to stay with the current QME. We shall see…. Just know that this decision brings an end to the “automatic” replacement panel process due to scheduling, and will likely result in more litigation, given the reliance on a WCJ’s discretion.
