In the Panel Case of Gonzalez v. Huntington Drive Health Rehabilitation (49 CWCR 221) it was found that an applicant had properly obtained a panel list under Labor Code section 4060 by using a defendant’s “delay letter.”
In Gonzalez, the defendant sent a Notice of Delay letter dated April 23, 2021 indicating benefits were being delayed because additional information was needed to make a determination on the claim. In part, the delay letter indicated that medical records and a med-legal exam were necessary in order to make a decision.
The following month on May 19, 2021, the applicant submitted a request for a Chiropractic panel citing Labor Code section 4060 and utilizing the delay letter sent by the Defendants.
The Defendants subsequently objected to the panel and sought to strike the panel as being improperly obtained by utilizing the Delay Letter to start the process. (The Defendants also objected to the specialty of the panel.)
The matter proceeded to an expedited hearing. The trial Judge found that there must be a dispute before the applicant could initiate the QME panel process and found that there was no dispute at the time the panel was requested. Accordingly, the Judge found the panel was improperly obtained.
However, the applicant sought a Petition for Removal and applicant’s Petition was granted and the F&O was rescinded.
The court found that Labor Code Section 4060 permits a medical legal exam “at any time after the filing of the claim form.” In addition, Labor Code Section 4062.2(b) requires the party requesting an exam to wait at least 10 days, plus five for mailing after the mailing of a request for a medical evaluation. In this case, the delay letter expressly stated that a medical legal exam was needed in order to make a decision regarding the claim. In that the applicant waited the requisite time after the defendant mailed the delay letter, the QME panel was properly obtained. The court also explained that despite the Judge finding that there was no dispute, the fact that the claim has not been accepted creates a dispute. (Citing Chavarria v. Crews of California 2019 Cal.Wrk.Comp. P.D. LEXIS 534)
The court further noted that both parties have the right to conduct discovery regarding causation of the injury and must do so expeditiously. Requiring a party to wait until a denial letter is issued could frustrate and slow the discovery process.
In practice, there has been an increase in applicant attorneys starting the panel QME process by using Delay Letters. This often results in the defendant being stuck with unfavorable specialties requested on behalf of the applicant. The panel in Gonzalez noted that prior case law which may offer conflicting analysis, such as the trial judge relied on, is not as persuasive as their findings and cases such as Chavarria.
Accordingly, if you plan on utilizing the panel process, be prepared to start your panel process after the issuance of the Delay Letter. Waiting for the denial letter to issue could result in an unfavorable panel and result.