Do the rules matter in California workers’ compensation?  Do we have to do the panel dance or can we just cut to the chase?

Listen, dear readers, to the story of Maxine Brown Virgil v. Lunch Stop, Inc., a panel decision recently issued and freshly blogged-upon.

Ms. Virgil and her employer’s insurance company were locked in a battle of wills and began the ritual with which we are all far too familiar – requesting a panel.  The panel was issued, and defendant struck one name from the panel.  While applicant considered the other two names, she discovered that one of the QMEs could not provide an appointment within 60 days.

That being the case, applicant wrote to the medical director requesting a new panel under California Code of Regulations section 31.5(a)(2).  What’s that you ask?  Did applicant bother to strike a name from the panel?  No – after all, what was the point when applicant was entitled to a new panel.

Well, when applicant failed to strike a name from the panel, defendant chose the QME that applicant didn’t want, and scheduled an appointment for her.  When the matter was brought before the workers’ compensation Judge, the Judge ruled that even though applicant attempted to schedule an appointment with one of the QMEs, Labor Code section 4062.2 requires that applicant perform a “strike” and communicate that strike to opposing counsel.

Therefore, the WCJ issued an order instructing applicant to attend the appointment set by defendant for a QME evaluation.

Now, the caption on the panel decision reads “Opinion and Order Granting Petition for Removal.”  But, as the opinion states, the panel of commissioners “grant the petition only for the purpose of deleting the date of the appointment with [defendant’s selected QME], which has now passed.”   (Emphasis added.)

In other words, applicant has to communicate a strike, even though, as we’ve seen, that communication does not have to wait until ten days have passed.

What do you think, dear readers?  If the defendant has already communicated its strike, should applicant still have to make a strike of his or her own?  Or can the strike be made by implication in scheduling an appointment with one of the two remaining QMEs on the panel?