On When a QME Report is “Late”
Happy Tuesday, dear readers! Howdy Y’all!
Your humble blogger is back from his trip to Texas. So, a few brief updates for you: the NRRDA conference was fantastic. I highly recommend you attend in the years to come if you can make it. Despite my best efforts to catch an armadillo, the clever little buggers would make me chase them up hill, then turn into a ball and roll back down until I was exhausted. The bowling tournament will just have to wait.
Despite not catching an armadillo, I did manage to find something far more precious – some new friends, which is nothing to sneeze at. After all, one of life’s greatest examples of tragic irony is that pirates spend their lives searching for treasure, never realizing that the real treasure is the friendships they form along the way.
Anywho, since we’re back in reality, let’s talk about a panel decision, shall we? I bring to your attention, dear readers, the case of Munoz v. Cascade Drilling, recently issued by the WCAB. This is on everyone’s favorite subject – panel disputes! Applicant was examined by a QME in the orthopedic specialty for his claims of injury to the right wrist and right upper extremity. The report was served on the parties on March 9, 2021.
But, just as the good doctor was dropping his report into the mail, applicant’s counsel was dropping an objection into his own mailbox, alleging that the report was not timely and demanding a replacement panel in the specialty in pain medicine.
The parties proceeded to trial on the issue and the WCJ ruled that applicant is entitled to a new panel, AND is entitled to change the panel specialty.
Since your humble blogger has an overactive imagination, I like to think that at 6:00 a.m. on the 30th day since the exam, applicant’s counsel’s alarm goes off, but he’s already awake. He rips the blanket off himself and is wearing already wearing a suit, clutching the objection letter in his hand. “I’ve waiting 30 days for this moment” he thinks to himself, “it may as well have been 30 lifetimes.” As he drops his objection letter into the mail, he roars “evaluate THIS!”
So, what happens, dear readers? The QME is serving the report on the same day the applicant is serving his objection. On the one hand, there is no way applicant’s counsel has seen the report at the time he sends his objection – so any concerns of objecting based on the contents of the report don’t apply. On the other hand, Labor Code section 139.2(j)(1)(A) provides for 30 days after an exam to submit the initial report, and rule 38 requires that the objection me made prior to the date the evaluator served the report.
The WCAB took up the issue and found that the plain meaning of rule 38 is that an objection has to be made PRIOR to service of the report. So, if both the objection and the report are served on the same day, presumably the objection is late and the report stays in.
It seems to be taken as a given, however, and not commented upon by the WCAB, that a replacement panel due to a late report allows the objecting party to change the panel specialty. In your humble blogger’s opinion, the proper approach is to issue a replacement panel in the same specialty. What do you think dear readers?
And here’s another hypothetical question for you from your humble blogger. The report in this case was served on March 9, 2021. Since then, the WCAB has adopted rules requiring the parties to accept service by e-mail. What happens if the report is served by e-mail on day 31 at 8:00 a.m., but one of the parties had scheduled an e-mail objection at 12:01 a.m. that morning objecting to the late report? At that point, does the objection get “made” before service of the report, consistent with rule 38? After all, the online panel request system is sensitive to the millisecond – the first electronic panel request after 5:00 p.m. on 16th day wins.
Just something to think about in our brave new world, dear readers. Till Wednesday…