“Accordingly, the Appeals Board is vested with the judicial power to adjudicate workers’ compensation cases, which includes the determination of whether a replacement QME panel is valid or otherwise appropriate.”
(Vazquez, supra, at p. 9, citing Lab. Code, § 111.)
“The Appeals Board has broad powers to adjudicate discovery disputes, which include the taking of additional medical evidence.”
(Vazquez, supra, at p. 9, citing McDuffie v. L.A. County Metro. Transit Auth. (2002) 67 Cal.Comp.Cases 138, 141 (Appeals Bd. en banc); Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.)
“Two provisions in the Labor Code expressly grant parties the statutory right to replace a QME.”
(Vazquez, supra, at p. 9.)
“In other words, when a violation described in the statute occurs, a party may promptly seek replacement of the QME.”
(Vazquez, supra, at p. 9.)
“(f) Communications with an agreed medical evaluator shall be in writing, and shall be served on the opposing party when sent to the agreed medical evaluator. Oral or written communications with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication. (g) Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation.”
(Lab. Code, § 4062.3(f), (g), as quoted in Vazquez, supra, at p. 9, fn. 7; see Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575; Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803 (Appeals Bd. en banc); Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136 (Appeals Bd. en banc).)
“Black’s Law Dictionary defines ‘ex parte’ as, ‘On or from one party only, usually without notice to or argument from the adverse party.’ (Black’s Law Dict. (7th ed. 1999) p. 597, col. 2.) Black’s further states that an ‘ex parte communication’ is, ‘A generally prohibited communication between counsel and the court when opposing counsel is not present.’”
(Maxham, supra, 82 Cal.Comp.Cases at p. 142 (Appeals Bd. en banc), as quoted in Vazquez, supra, at p. 10, fn. 8.)
“The second is a failure to timely complete a formal medical evaluation under sections 4062.5 and 139.2(j)(1).”
(Vazquez, supra, at p. 10.)
“If a qualified medical evaluator selected from a panel fails to complete the formal medical evaluation within the timeframes established by the administrative director pursuant to paragraph (1) of subdivision (j) of Section 139.2, a new evaluation may be obtained upon the request of either party, as provided in Sections 4062.1 or 4062.2. Neither the employee nor the employer shall have any liability for payment for the formal medical evaluation which was not completed within the required timeframes unless the employee or employer, on forms prescribed by the administrative director, each waive the right to a new evaluation and elects to accept the original evaluation even though it was not completed within the required timeframes.”
(Lab. Code, § 4062.5, as quoted in Vazquez, supra, at p. 10.)
“(j) After public hearing pursuant to Section 5307.3, the administrative director shall adopt regulations concerning the following issues: (1) (A) Standards governing the timeframes within which medical evaluations shall be prepared and submitted by agreed and qualified medical evaluators. Except as provided in this subdivision, the timeframe for initial medical evaluations to be prepared and submitted shall be no more than 30 days after the evaluator has seen the employee or otherwise commenced the medical evaluation procedure. The administrative director shall develop regulations governing the provision of extensions of the 30-day period in both of the following cases: (i) When the evaluator has not received test results or consulting physician’s evaluations in time to meet the 30-day deadline. (ii) To extend the 30-day period by not more than 15 days when the failure to meet the 30-day deadline was for good cause. (B) For purposes of subparagraph (A), “good cause” means any of the following: (i) Medical emergencies of the evaluator or evaluator’s family. (ii) Death in the evaluator’s family. (iii) Natural disasters or other community catastrophes that interrupt the operation of the evaluator’s business. (C) The administrative director shall develop timeframes governing availability of qualified medical evaluators for unrepresented employees under Section 4062.1. These timeframes shall give the employee the right to the addition of a new evaluator to his or her panel, selected at random, for each evaluator not available to see the employee within a specified period of time, but shall also permit the employee to waive this right for a specified period of time thereafter.”
(Lab. Code, § 139.2(j)(1), as quoted in Vazquez, supra, at p. 11.)
“Based on a plain reading of section 139.2(j)(1), we conclude that the term “medical evaluation” does not refer to the scheduling or availability of the QME to set an appointment.”
(Vazquez, supra, at p. 12.)
“Harmonizing sections 4062.5 and 139.2(j)(1), we conclude that the term ‘formal medical evaluation’ contained in section 4062.5 actually refers to the report generated after an in-person evaluation. Thus, a party may seek to replace a QME under section 4062.5 where an evaluation takes place and the report prepared from that evaluation is untimely served.”
(Vazquez, supra, at p. 12.)
“[W]hen sections 4062.5 and 139.2(j)(1) are read together, a party’s statutory right to seek replacement of a QME in represented cases arises when the QME fails to timely issue a report following a medical evaluation.”
(Vazquez, supra, at p. 10.)
“In represented cases, the determination of whether a QME should be replaced due to unavailability to set an evaluation is within the discretionary power of the Appeals Board, and a QME may be replaced where a party demonstrates good cause for the replacement.”
(Vazquez, supra, at p. 10.)
“(e) If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party’s initial request for an appointment. When the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party’s initial request for an appointment, either party may report the unavailability of the QME and the Medical Director shall issue a replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations upon request, unless both parties agree in writing to waive the one-hundred-twenty (120) day time limit for scheduling the initial or any subsequent evaluation.”
(Cal. Code Regs., tit. 8, § 31.3(e), as quoted in Vazquez, supra, at p. 12.)
“(f) The provisions of subdivision (e) of this regulation apply to both requests for any Comprehensive Medical-Legal Evaluation by a QME and requests for Follow Up Comprehensive Medical-Legal Evaluations by a QME.”
(Cal. Code Regs., tit. 8, § 31.3(f), as quoted in Vazquez, supra, at p. 13.)
“AD Rule 31.5 merely compels the Medical Director to issue a replacement panel upon request of a party when any of the enumerated conditions in subdivision (a)(2) occur.”
(Vazquez, supra, at p. 13; see Cal. Code Regs., tit. 8, § 31.5(a)(2).)
“Thus, while the rules are valid, AD Rules 31.3 and 31.5 cannot be interpreted as finally determining whether a replacement panel is appropriate because such an interpretation would usurp the adjudicative power of the Appeals Board to determine whether a QME should be replaced.”
(Vazquez, supra, at p. 13, citing Lab. Code, § 111.)
“In a represented case, the Labor Code expressly allows replacement of a QME who drafts an untimely report following a medical evaluation; however, it does not compel replacement of a QME who is not timely available to set an appointment. Absent a statute compelling such a result, whether a QME should be replaced due to unavailability falls within the Appeals Board’s broad equitable powers.”
(Vazquez, supra, at p. 13, citing Lab. Code, §§ 111, 52, 5300–5302; McHugh, supra, 49 Cal.3d at pp. 355–356.)
“[T]he Industrial Accident Commission of this state has been invested with the power and authority to hear and determine equitable issues.”
(Bankers Indemnity Ins. Co. v. Industrial Acc. Com. (Merzoian) (1935) 4 Cal.2d 89, 98, as quoted in Vazquez, supra, at p. 13.)
“The administrative director shall establish agreements with qualified medical evaluators to ensure the expeditious evaluation of cases assigned to them for comprehensive medical evaluations.”
(Lab. Code, § 139.2(g), as quoted in Vazquez, supra, at p. 13.)
“Accordingly, where a QME is unavailable pursuant to regulation, they may subject themselves to discipline, which could ultimately lead to the loss of the QME’s appointment.”
(Vazquez, supra, at p. 13, citing Cal. Code Regs., tit. 8, § 60.)
“While the dates set by the Administrative Director are important and should be followed and may even be persuasive as to whether the length of delay is inappropriate, we cannot find on this record that the mere passing of time is sufficient to warrant replacing the existing QME.”
(Vazquez, supra, at p. 13.)
“Instead, we adapt the factors set forth in the panel decision in Corrado, supra.”
(Vazquez, supra, at p. 14; see Corrado v. Aquafine Corp. (June 24, 2016, ADJ9150447, ADJ9150446) [2016 Cal.Wrk.Comp. P.D. LEXIS 318] (panel).)
“In Messele, the Appeals Board found that the 10-day period to request an evaluator is extended by five days by application of law.”
(Vazquez, supra, at p. 15, describing Messele, supra, 76 Cal.Comp.Cases 1318 (Appeals Bd. en banc).)
“The first is ex parte communication.”
(Vazquez, supra, at p. 9, citing Lab. Code, § 4062.3(f), (g).)
“Other provisions of the Labor Code may present good cause to replace a QME.”
(Vazquez, supra, at p. 9, fn. 6.)
“For example, a violation of section 4628 compels the exclusion of a QME’s report under subdivision (e) and could be considered by a WCJ in determining whether good cause existed for a QME’s replacement.”
(Vazquez, supra, at p. 9, fn. 6, citing Lab. Code, § 4628(e).)
“(a) A replacement QME to a panel, or at the discretion of the Medical Director a replacement of an entire panel of QMEs, shall be selected at random by the Medical Director and provided upon request whenever any of the following occurs[.]”
(Cal. Code Regs., tit. 8, § 31.5(a), as quoted in Vazquez, supra, at p. 13.)
Cross-references: § 1.4 (prospective application); § 16.9 (medical evaluations and OSAs); § 17.1 (discovery); ch. 9 remainder: reserved.
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