It is with some reluctance that your humble blogger writes this post, grudgingly agreeing with the applicant’s position in the case of Yesenia Guillen v. Adrid International, LLC.  Normally, your humble blogger only agrees with an applicant’s withdrawal of his or her claim, followed by an expedition return to work and a most sincere promise to be more careful in the future.  Here, however, applicant is in the right when it comes to the mandatory 10-day “conferral” period following the issuance of a panel.

In Guillen, the parties were issued an Orthopedic specialty panel and, waiting but six days, applicant struck a name from the list of physicians.  Defendant did not respond to the strike.  Instead, Defendant proposed the use of one of the names on the panel as an Agreed Medical Evaluator, and then, receiving no response from applicant, struck a name on the thirteenth day.  Applicant made no response and Defendant proceeded to select the Qualified Medical Evaluator it had originally proposed as an AME as the PQME for the matter and scheduled an appointment for the applicant.

When the applicant did not appear for her evaluation, the matter proceeded before a workers’ compensation Judge to address the question of whether applicant’s “premature” strike was ineffective because Applicant did not wait to strike until after the 10-day conferral period prescribed by Labor Code section 4062.2.

The WCJ held that the strike was ineffective and that, essentially, the 10-day waiting period was mandatory.  Responding to applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board first noted that applicant’s attorney should have instead filed a petition for removal, as discovery  orders, such as panel issues, are not final orders.

However, treating applicant’s petition as one for removal, the WCAB held that the 10-day conferral period once a panel has been issued is not mandatory.  The non-striking party still has the full 10-day conferral period plus three working days in which to make its strike.

Prior to this non-binding panel decision, your humble blogger observed some parties communicating their strike with the caveat that the strike is effective the “first working day a party has the right to strike a name from the panel.”  This is a caution approach and a practical one, noting that often enough the names of a panel are clearly not AME material, especially in cases where the injury is denied.

I note here, however, that the applicant’s lawyer should have been required to take further action.  Once an appointment has been noticed, applicant should have responded to opposing counsel, perhaps providing a carbon copy to the selected PQME, explaining that applicant will not attend the evaluation.  This will avoid the no-show costs no-doubt incurred.  Perhaps the issue will be litigated and decided in future cases?

Now, all that’s missing from the panel QME process is to make the panel QME process voluntary, and allow the parties to agree to retain their own QMEs once again!