In Kowal v. County of Los Angeles, a Board panel concluded that an untimely stuck panel physician remains a viable QME option and that the 60-day time to schedule an evaluation can be extended to 90 days solely by the requesting party without the need for concurrence by the opposing party. The panel went on to note that once the initial time frame for scheduling a QME exam had lapsed (10 days after QME panel issuance), either party has an indefinite time to schedule a QME exam from the panel provided.
Applicant alleged a cumulative trauma injury to multiple body through February 28, 2012, following up on a prior cumulative trauma claim file through January 2018. Defendant issued a timely denial of the 2012 claim and applicant requested a QME panel. Defendant issued a timely objection to the panel asserting it was duplicative of the QME report in the 2018 claim but issuing a strike as a precaution. Applicant’s strike was not timely. Neither party scheduled an evaluation with the remaining QME physician.
Almost one year later, applicant scheduled an evaluation with the physician that was struck by applicant. The scheduled appointment was 62 days after the request. Defendant objected based on applicant’s prior strike of the physician.
The matter proceeded to trial and the trial judge initially determined that applicant was not entitled to a separate panel for the alleged 2012 cumulative trauma claim. This decision was reversed by the Board on reconsideration based upon Navarro v. City of Montebello (2014) 42 CWCR 224, stating that applicant did have the right to obtain a new panel for the later filed claim.
Th matter then proceeded to trial on the sole issue: Could applicant set a QME evaluation with a doctor that applicant had untimely struck, even if that doctor could not evaluate within the 60-day statutory time period prescribed in QME Rule 31.3? The trial judge determined that the applicant could not since the chosen physician had been untimely struck from the panel by the petitioner and was unable to schedule the evaluation “within the statutory time period.”
On removal, the Board first addressed the timeliness of applicant attorney’s strike. Razo v. Los Posas Country Club/Hartford Ins. Co., (2014) 42 CWCR, confirms the 10-day period for a party to strike is extended five (5) days for mailing. In this case, even considering the additional time for mailing, applicant’s panel strike was not timely and therefore invalid thus making that doctor a possible QME.
The Board then turned its attention to the question of scheduling the exam within “the statutory time period.” Although Labor Code §4062.2(d) grants the applicant the exclusive right to set an evaluation in the first 10 days after the medical evaluator is selected. If the applicant does not set the appointment withing the first 10 days, the defendant may set an evaluation pursuant to QME Regulation 31.3, which is consistent with the Labor Code §4062.2. Applicant is the only party with the right too schedule an evaluation in the first 10 days; after those 10 days, either party may exercise the right to schedule a QME appointment.
Further, the “party with the legal right to schedule an appointment with a QME” was interpreted to allow the party with the latitude to waive the 60-day statutory requirement and the right to a replacement panel and instead accept an evaluation date within 90 days of the initial appointment request.
This case serves as a reminder to act diligently in all matters PQME. The current panel process is driven by timelines and being the first party to act. The race starts with the time to request the panel with each party seeking the panel in their preferred specialty but does not end there. You must remain mindful of the timeframe to issue a strike, as we can see here, an untimely strike will be found invalid, and that physician will remain a viable option to act as the PQME. Finally, as defendant, it should not be assumed that applicant will schedule the appointment; monitor the file for the expiration of the first 10 days and, if no appointment has been scheduled, schedule it yourself. This is particularly important if the remaining physician on the panel may not be able to schedule within the 60-day period, and you would prefer to avoid a replacement panel.
It’s all in the timing….the QME process is a race and the party that is diligent in monitoring the positions of the parties has a better chance at gaining an edge in process.