WCDefenseCA

Shopping.  Some people love it, some people hate it.  There’s the driving and the parking and the lines and the crowds and the returns and the punk kids at the mall with their loud music and their whatchamakalls it and back in my day…  In case you’re wondering, your humble blogger is not a general fan of shopping.  Amazon is a wonderful thing for that reason – I gets what I wants and I don’t have to go to the store to get it!

But we few, we happy few, we band of brothers and sisters of the most sacred order of California Workers’ Compensation, are often enough dragged into a different type of shopping, one not found in any store and one which even Amazon is helpless to make bearable: doctor shopping!

It starts on day 1 – we’re all fighting to secure what will be the most favorable panel.  Applicants are pushing as hard as they can for chiropractors and pain management physicians; defense attorneys are pushing equally hard for orthopedists.  But even after the panel specialty is set, the doctor shopping continues – reasons are found to seek replacement panels, objections are made as soon as a report is late, even if by a day.  Unfortunately, it doesn’t take long for a doctor to be painted as either an applicant doctor or a defense doctor, and the expectation of bias is already there.

In the recent case of Vasques v. Liberty Mutual, a WCAB panel concurred with the WCJ that applicant was not entitled to a replacement panel when the PQME could not schedule a deposition within 120 days of the initial request.

About 8 weeks after receiving a supplemental report from the PQME, applicant’s attorney called to set a deposition, but the first available appointment was 133 days or so out.  California Code of Regulations section 35.5(f) provides that a QME must make him or herself available for deposition within 120 days of the notice of deposition.

Applicant sought a replacement panel on the basis that the QME was not available within 120 days of the initial request.

The WCJ rejected the request for a new panel.  The 13 days of delay for the deposition did not cause prejudice, as per the WCJ, and, after all, applicant did wait 8 weeks from service of the report before requesting a deposition.  Additionally, the WCJ cited Corrado v. Aquafine Corporation, a 2016 panel decision, for the proposition that ordering a replacement panel for a late supplemental report was, at least somewhat, in the discretion of the Judge.  Applying that by analogy to a late deposition, the WCJ submitted that it was not an abuse of discretion to not order a new panel under these facts.

Looking at this from the outside, based only on the facts that are available from the panel opinion, doesn’t this seem like a pretty clear “no, you don’t get a new panel?”

Now, take the scenario a bit and change it.  The attorney asks for a deposition date and gets one, but prior to the deposition, the doctor cancels it because of [insert any reason].  Does the doctor now get 120 days from the cancellation, or does the QME have to fit the parties into the 120 day slot?  How much leeway is the QME supposed to get?

The other thing to bear in mind is the timing.  Let’s say the AA is complaining about the 13 day delay after already waiting for 120 days.  Well, the time it takes to get a replacement panel will probably be 30-60 days, and that’s assuming there is no necessity to have a hearing about the issue first.  Well, if the panel issues in 30 days, there’s also a two-week strike process, and then 60 – 90 days to set the exam, let alone the 30 days to get the report.  That’s also assuming that the first replacement panel issued will not be defective…

What do you think, dear readers?  If the fight to get a replacement QME is longer than the extra wait for a  deposition, is this just doctor-shopping?  Or should we go through the procedures anyway?