Case BriefDiscoveryObjection to QME Report on Timeliness Grounds Must Be Raised Before Receipt of Report

March 10, 20160

RUIZ vs. SCHWAN’S HOME SERVICES, INC.

(2015) 2015 Cal. Wrk. Comp. P.D. Lexis 571

 

Applicant, delivery driver, claimed injury to his hand (accepted) psyche and a stroke (denied) on September 27, 2012.

In order to address the denied psych claim, the parties utilized a Qualified Medical Evaluator. The psychologist conducted her examination on November 4, 2014 during which she spent seven hours conducting and analyzing psychological testing. On November 10, 2014, she issued an “abbreviated report” stating that the applicant had sustained injury to the psyche and that the injury was predominantly caused by his employment.

On November 29, 2014, the QME requested an extension of time to complete her evaluation, citing the need for results of the psychological testing. She indicated in her request that the report would be served by January 2, 2015. The request for extension of time was granted.

The QME issued a “formal report” (which met the requirements of 8 CCR 10606) dated January 2, 2015 with proof of service indicating that it was served on that same date. However, the defendant produced the envelope in which the report was mailed showing a postmark of January 10, 2015. The defendant objected to the timeliness of the report and requested a replacement QME panel. Applicant objected to the replacement panel. Following a hearing on the issue, the Workers’ Compensation Judge found that the QME had “substantially complied” with the reporting time frames and that the reports were admissible.

Defendant filed a Petition for Removal which was denied. The Board adopted the Workers’ Compensation Judge’s Report and Recommendation in which he explained that while on its own the abbreviated report may not have constituted substantial evidence, it was timely and addressed the “threshold issue” of compensability. Therefore, the QME had substantially complied with the reporting timelines. Further, since the defendant did not object to the timeliness of the full report until after its receipt, it had waived the timeliness objection.

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