As we enter June, we welcome warm weather and the energy of the summer season. With the summer solstice marking the longest day of the year, it’s the perfect time to enjoy the outdoors, fire up the grill, and gather with friends and family around the barbeque.
We at Mullen and Filippi wish you and yours the best as the summer unfolds!
WCAB ISSUES EN BANC DECISION ON REPLACEMENT PANELS
On May 18, 2025, the Appeals Board issued in Abel Vasquez v. Inocensio Renteria; Zenith Insurance Co., (ADJ1101717003).
In Vasquez, the Appeals Board held that only the Appeals Board has jurisdiction to determine whether a replacement QME panel is appropriate or valid. In a represented case, when a QME cannot set an appointment within the timeframes of Administrative Director (AD) 31.3 (within 90 – 120 days of appointment request), replacement is not automatic. Rather, the Workers’ Compensation Judge (WCJ) has discretion to issue a replacement panel upon a showing of good cause.
The Appeals Board listed five factors that a WCJ may consider in deciding whether there is good cause for a replacement panel, which are:
- The length of the delay caused by the QME’s unavailability.
- The amount of prejudice caused by the delay in availability versus the amount of prejudice caused by restarting the QME process.
- What efforts, if any, have been made to remedy the QME’s availability.
- Case specific factual reasons that justify replacing the current QME, including whether a party may have waived its objection.
- The Appeals Board’s constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4.)
In Vasquez, the Applicant, a seasonal agricultural worker sustained an injury to his left lower extremity and claimed to sustain injury to his psyche in addition to hypertension, diabetes, and hyperlipidemia.
Internal QME Dr. Ira Fishman issued an initial report on May 21, 2021 and a Supplemental QME Report on May 31, 2022.
On July 29, 2024, Applicant requested a re-evaluation with Dr. Fishman and an appointment was set on December 2, 2024 (127 days later).
On August 5, 2024, Defendant submitted a replacement panel request per AD Rule 31.3(e) and 31.5(a)(2) because the re-evaluation with Dr. Fishman was scheduled more than 120 days after Applicant’s request.
On August 15, 2024, the Applicant objected to Defendant’s replacement panel request, noting that the 120-day time limit only applies to initial panel QME appointments and not to re-evaluations. Defendants responded, citing AD Rule 31.5(f) and argued that the timeframes for the scheduling of QME appointments apply to both the initial appointment and re-evaluations.
On September 12, 2024, The Division of Workers’ Compensation (DWC) Medical Unit (MU) issued a replacement panel. The Applicant’s attorney objected to the validity of the replacement panel and the issue was set for trial.
The WCJ found that Defendant was entitled to a replacement panel because Dr. Fishman was not able to set a re-evaluation within 120 days, as required by AD Rule 31.3.
The Applicant’s attorney filed a Petition for Removal of the Findings and Order (F&O) issued on March 11, 2025, arguing that the time limits set in AD Rule 31.3 should not be enforced to require the replacement of a QME who is not available. Rather, Applicant cited the panel decision of Corrado, which applied a balancing test in deciding whether good cause existed to replace a panel QME.
As noted above, the Appeals Board in Vasquez held that when a panel QME is not able to set a timely appointment per AD Rule 31.3, the WCJ or the Appeals Board has the discretion to order a replacement panel QME list upon a showing of good cause.
In support of its opinion, the Appeals Board cited Labor Code (LC) section 4062.5, which states:
If 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 up on the request of either party, as provided in Sections 4062.1 or 4062.2.
The Appeals Board also cited LC Section 139.2(j)(1)(A), which states in part that:
“…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.”
The Court said that based on the plain reading of section 139.2(j)(1)(A), the term “medical evaluation” does not refer to the availability of the QME to set an appointment and that Subsection A discusses the timeframe for “evaluations” to be prepared and submitted after panel QME evaluation is conducted. As a result of this, the Appeals Board said that a party may seek to replace a panel QME per LC Section 4062.5 if a panel QME report is not timely served after an evaluation.
The Appeals Board recognized that AD Rule 31.3 allows for a replacement panel if an appointment is not set within 90 – 120 days. However, the Court said that while the rule it valid, AD Rule 31.3 cannot be interpreted as “finally determining” whether a replacement panel QME is valid, because that interpretation would usurp the adjudicative power of Appeals Board in deciding whether a panel QME should be replaced. In support of its position on this issue, the Appeals Board reiterated that the Labor Code expressly allows for the replacement of a panel QME who issues untimely reports, whereas it does not compel replacement of a panel QME who is available to set a timely appointment.
In closing, the Commissioner said that while the dates set by the Administrative Director “are important and should be followed … we cannot find that the mere passing of time is sufficient to warrant replacing the existing QME.” Rather, the Court said that in a represented case, the determination of whether a QME should be replaced due to unavailability requires the balancing of the Corrado factors noted above.
TAKEAWAYS:
If a QME is unavailable to schedule a timely appointment under AD Rule 31.3, the Medical Unit must issue a replacement panel. However, the WCAB has jurisdiction to determine the validity of the replacement panel list, so practitioners should be prepared to litigate disputes over such replacements.
It is important to recognize that the Appeals Board will look at the facts of each case in deciding whether a replacement panel is valid. Had the Vasquez case involved an initial evaluation, rather than a re-evaluation, or a longer period of delay in setting the appointment, the outcome may have been different.
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months are available on our website at www.mulfil.com/bulletins.
