Q: Is there a time limit for an AME or PQME to issue a supplemental report?
A: Yes. Title 8 of the California Code of Regulations section 38(h) provides that an AME or PQME has no more than 60 days from the date of the written or electronically transmitted request to the physician to issue a supplemental report.
An extension of the 60 day time frame of no more than 30 days maybe agreed to by the parties without the need to request an extension from the medical director. (8 C.C.R. section 38(h).)
A related question, and the more difficult question is, what happens if the AME or PQME is late in issuing a supplemental report?
Unlike Title 8 of the California Code of Regulations section 38(a), which provides the ability to request a QME replacement panel for an initial report or follow-up comprehensive medical-legal evaluation report which is late, 8 CCR 38(h) does not provide a remedy if a supplemental report is late. In fact, there is no penalty or remedy for a late supplemental report noted in section 38(h).
In my experience, a WC judge has used his or her discretion in determining whether the original AME or PQME is barred from reporting due to a late supplemental report.
Unfortunately, there is little case law regarding the remedy for a late supplemental report. There is a Worker’s Compensation panel decision, Larry Chiappellone v. Norcal/Golden Gate Disposal and Recycling Company, JT2, Integrated Services, 2010 Cal.Wrk. PD Lexis 227, in which it was noted that the court should consider several factors including: the length of time that the PQME had served as the PQME, the complexity of the issues involved between the parties, and whether the PQME had ultimately issued the report.
Obviously depending on how long a PQME or AME has served on a case may affect the judge’s decision. If the PQME or AME has been involved with the case for several years and has issued multiple reports, after multiple evaluations, the judge most likely is going to be less inclined to order a new PQME to take over the case due to a supplemental report being late. If the case is one that involves complex issues which requires extensive evaluations and review of extensive documents then a judge is going to be less likely to order a new panel to issue and have the parties start completely over with the medical legal process.
Other factors which may be considered is how late the report actually was and whether there was a detriment to the objecting party. If the report is only a few days late and there has not been any detriment to the party, a judge may be less inclined to order a panel.
If you do have a late supplemental report, it is mandatory to object to the report being late before the report issues or a judge will consider your failure to timely object as a waiver of the issue.
Understand that due to the lack of a specific remedy in the California Code of Regulations and due to the lack of case law to provide guidance, the decision on whether a new panel will issue as a result of a supplemental medical legal report being late is within the discretion of the judge. This most likely will, and has, resulted in greatly different outcomes depending on the court or venue that you are arguing in. (For example, I have had one judge rule that a supplemental report that was close to six months late did not justify a new panel issuing, while in a different court I’ve had a judge rule that a supplemental report that was just 25 days late did justify a new panel issuing and the old PQME reports being stricken.)
Whether you are considering objecting to a late supplemental report and requesting a new panel or whether you were attempting to keep the old panel in the case, consider the Chiappellone factors noted above and also consider whether there has been a detriment as a result of the report being late and be prepared to argue those factors.