California Labor Code § 4062.5

Determinative passage · p.7(Vazquez, supra, at pages 522-523.) Section 4062.5 provides that "[i]f a qualified medical evaluator selected from a panel fails to complete the formal medical evaluation within the timeframes established by the administrative director pursuant to paragraph (1) of subdivision (j) of Section 139.2, a new evaluation may be obtained upon the request of either party." Section 139.2 specifically authorizes the administrative director (AD) to adopt regulations concerning the "[s]tandards governing the timeframes within which medical evaluations shall be prepared and submitted by agreed and qualified medical evaluators. Except as provided in this subdivision, the timeframe for initial medical evaluations to be prepared and submitted shall be no more than 30 days after the evaluator has seen the employee or otherwise commenced the medical evaluation procedure." (Lab. Code, § 139.2(j)(1)(A).) "[W]hen sections 4062.5 and 139.2(j)(1) are read together, a party's statutory right to seek replacement of a QME in represented cases arises when the QME fails to timely issue a report following a medical evaluation." (Vazquez, supra, page 523, emphasis in original.)

PQME Dr. Wiseman failed to serve his report on all parties within the statutory timeframe, justifying replacement.

Determinative passage · p.4As to defendant's first argument, we find that a party must timely object to an untimely report per AD Rule 31.5(a)(12). (Cal. Code Regs., tit. 8, § 31.5(a)(12).) Defendant's argument to the contrary is not persuasive. Rule 31.5 does not exceed the scope of Labor Code section 4062.5, which expressly states that when a formal medical evaluation is not timely completed, "a new evaluation may be obtained upon the request of either party[.]" (§ 4062.5, (emphasis added).) First, the Legislature did not use mandatory language in the statute. To the contrary, the statute says a party `may' obtain a new evaluation. May is permissive. (§ 15.) Next, the statute expressly requires that a party request the new evaluation. The fact that the regulation refers to this request as an `objection' is entirely appropriate and does not exceed the scope of the enabling statute. Finally, the regulatory requirement that an objection issue prior to the QME's service of the report is an equitable principle grounded in waiver, laches, and estoppel. If a party is genuinely concerned about timeliness, they must object timely.

The statute is permissive and requires a party request; the regulation's objection requirement is consistent with this.

Determinative passage · p.1We previously granted defendant's Petition to further study the factual and legal issues in this case. Although defendant sought removal, the WCJ's ruling resolves threshold issues pursuant to the provisions of Labor Code section 4062.5 and Administrative Director Rule 38(b);1 thus, defendant's Petition is deemed a petition for reconsideration. This is our Opinion and Decision After Reconsideration.2

Governs the timeframes and conditions for obtaining replacement QME evaluations when the original QME fails to timely complete the evaluation.

Determinative passage · p.5Defendants next appeal the determination that temporary disability is owed based on the reporting of Dr. Rakkar. Defendants note that under the 14th Amendment of the U.S. Constitution, they are entitled to due process, and seem to imply that their right to due process was violated in this matter. We do not see how that is true. Defendants have not been stopped from pursuing their remedies under the Labor Code to take their disagreement about the finding of temporary disability to a Panel QME. Labor Code Section 4062.5 (a) does allow a party to obtain a panel QME where a medical evaluation is requires to resolve any dispute. Defendants have pursued that remedy, as at the time of Trial, a Panel QME evaluation had been set. Further, Defendant was not deprived of their right to contest the findings of the PTP. They timely objected to the reporting of Dr. Rakkar and proceeded to the panel process. They also sought a supplemental report from Dr. Rakkar to address concerns that they had.

The WCAB noted defendants pursued the panel QME process after objecting to Dr. Rakkar's report.

Determinative passage · p.4If a qualified medical evaluator selected from a panel fails to complete the formal medical evaluation within the timeframes established by the administrative director pursuant to paragraph (1) of subdivision (j) of Section 139.2, a new evaluation may be obtained upon the request of either party, as provided in Sections 4062.1 or 4062.2.

Legal basis for replacement QME panel request.

Determinative passage · p.5Pursuant to Labor Code section 4062.5, if a panel QME fails to complete the formal medical evaluation within the time frames established by the administrative director pursuant to paragraph (1) of subdivision (j) of section 139.2, a new evaluation may be obtained upon the request of either party, as provided in sections 4062.1 or 4062.2. Section 4062.1 outlines the procedure for requesting a medical evaluation where the employee is unrepresented by an attorney. (Lab. Code, Section 4062.1.) Relevant here, section 4062.2 outlines the procedure for requesting a medical evaluation if the employee is represented by an attorney. (Lab. Code, § 4062.2.)

Supports right to replacement QME panel if deadlines missed and timely objection made.