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When Must a Party Object to a Late QME Report? Earlier Than You Might Think!

What happens when a QME issues a late report but the objecting party waits too long to object? And what is “too long to object”, anyway? Rule 31.5(a)(12) limits the right to object to untimely reporting to no later than the date prior to the evaluator serving the report. 

In Alvaro Munoz V. Cascade Drilling, et. al. ADJ13545767 February 18, 2022 Panel Decision, the Appeals Board issued a panel decision holding that Labor Code §4062.5 [allowing a party to seek a replacement panel based on untimely reporting] did not preclude the application of Rule 31.5(a)(12).

In the case, the parties’ PQME submitted an evaluation report 54 days after the applicant’s evaluation. The PQME had previously issued reporting favorable to the defendant. The applicant objected to the untimely reporting on the same date the PQME served the evaluation report. Applicant requested a replacement panel through the DEU and also set the case for Mandatory Settlement Conference on the replacement issue. At trial, the applicant argued that the time to object to the untimely reporting was extended an additional 5 days due to the report’s service by mail and so contending that the applicant’s objection was not untimely. Defendant countered that the mailbox rule did not apply. It was argued that the right to object was triggered, not by service of the report, but rather by the lack of a report on the 31st day after the evaluation.

After submission of the issue for decision, the Judge opted not to decide the mailbox rule issue. Instead, the Judge concluded that Labor Code §139.2(j)(1)(A) [the PQME must submit reporting within 30 days of the evaluation] and Labor Code §4062.5 took precedence over Rule 31.5(a)(12). A replacement panel was ordered. Review of the decision was sought by defendant. It was argued that Rule 31.5(a)(12) was harmonious with the Labor Code and was a reasonable attempt to enforce Labor Code §§139.2 and 406.2.5.

The WCAB found that Rule 31.5(a)(12) prevented ‘potential doctor shopping’, which could occur if a party was able to review a report prior to objecting to its untimeliness, and promoted expeditious litigation. This make sense. After all, even though five days is given for service, many times a report will be received before five days from mailing, allowing the party time to review and decide if they like the report. In Mr. Easley’s case, based on the finding that applicant’s objection was untimely pursuant to that rule, the Judge’s decision allowing a replacement panel to issue was rescinded in a victory for defense. This finding allowed defendant to keep the favorable QME reporting and avoid unnecessary costs of a new QME.

The moral of the story here is that a QME must issue their reports in a timely manner, but parties must remain attuned to the date the reporting is due. Any party wishing to object must do so based on when the QME was supposed to provide the report, not based on when the report was received.

"Previous panel decisions have held that a party may not wait until after an adverse report issues to raise an irregularity but must do so at the earliest opportunity."

Tags

hannabrophy, workerscompensation, riskmanagement, californialaw, doctorshopping
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