WCDefenseCA

Pop quiz, dear readers.  You requested a supplemental report from a panel qualified medial evaluator, providing all treatment reports not available at the time of the original evaluation.  Sixty days later, there’s no report.  What happens?

Well, if you reach for the panel case of Lopez v. C&S Wholesale Groceries, you would say yes – a party who doesn’t get a supplemental report in 60 days, as required by California Code of Regulations section 38(h).

On the other hand, if you were to look at the panel case in Ramirez v. 3 Day Blinds Corporation, the answer would be no.

So, now we have yet another panel case, this time, Garcia v. Loaves and Fishes of Contra Costa, which again finds that no new panel is necessary.

The facts are a bit convoluted though, so bear with me (your humble blogger is not ignorant of the fact that today is Monday and the line at Peet’s Coffee was too long to tolerate today).

Defense counsel requested a supplemental report from the Panel QME, and more than sixty days later, no report was available.  Naturally, the defense filed an objection and requested a replacement panel, so the matter proceeded to hearing.

Apparently, the QME was in the process of moving his office, and didn’t get the request for a supplemental report.  Under the MSC judge’s guidance, the QME’s deposition was set and the issues raised in the original request for a supplemental report were apparently addressed.

But… shouldn’t the defendant be entitled to a new panel?

No.  In this case, the factors seemed to weight against issuing a new panel.  The transition of the PQME’s office provided a reasonable excuse for the failure to respond in a timely fashion, and the fact that the QME made himself available for deposition also relieved some of the harm done to the defense.

The WCAB denied defendant’s petition for removal and the Court of Appeal denied review.

Now, dear readers, we’re all grown men and women, so I’m going to be frank with you.  As previously revealed on this blog, there is no Santa Clause, the Easter Bunny does not exist, and late reports are excuses for a replacement panel.

Both sides do this and regularly – if a QME is favorable to your side, the report can be one day late or 45, you won’t object because you don’t want a new QME.  At the same time, if the QME’s office regularly rings with “quacking” noises, you’re probably going to look for any excuse to get rid of him, including a one-day late report.

The WCJ is absolutely correct – although there is a very firm deadline of 60 days for a supplemental report, there is no requirement that a replacement panel issue.  On the other hand, we know that a replacement panel is a remedy some judges are ready to provide for a late panel, and the inconsistency can be pretty frustrating (as is common with many things in the comp world).

Now, bear in mind, dear readers, that your humble blogger is not committed to one camp or the other.  When a defense-friendly QME is a month late with his report, it’s silly to issue a whole new panel and start the process over.  On the other hand, when a defense-hostile, drug-dealing, good-for-nothing QME can’t get his act together to get a report out in 60 days, justice demands he get the boot and a new panel issue.

What we need is a consistent rule, or some citeable authority, so we know ahead of time what’s going to happen with a late report, and what the consequences are.  If we had such a rule, perhaps we could avoid unnecessary litigation on this point.

However, until the WCAB gives us a solid, binding rule, one way or another, we can expect to take our chances with this again and again.

What do you think, dear readers?  What should the rule be?  If the report is late, should a party get a replacement panel on demand?  Should the right to request a panel be limited to the party that submitted the request for a supplemental report?  If a new panel is not the remedy for a late report, what should the remedy be?

I can think of a few alternative remedies:  If the report is late, the bill should be reduced by some amount.  The late report might generate a citation which, along with other citations, should lead to a probation status as a QME (and perhaps probation status can have a mandatory reduction in the statutory fees to which QMEs are entitled).

In the meantime, dear readers, keep those DORs handy, the calendars current, and your fingers crossed.

Have a good week!