14 Sep 2018

California: Medical Examiner Appointment Timeframes

In Bogue v. County of Solano, 2018 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, denying removal, affirmed the WCJ’s finding that a panel qualified medical evaluator’s inability to schedule an appointment for an applicant within 60 days of the applicant’s appointment request did not entitle the applicant to a replacement qualified medical evaluator in this case. The applicant, pursuant to her initial right to arrange a medical appointment under Labor Code § 4062.2(d), attempted to make an appointment with a qualified medical evaluator selected from a panel. However, she was unable to schedule the appointment within the 60-day timeframe. The WCAB found that because the applicant did not timely inform the defendant of her inability to arrange a medical appointment within 60 days of her request, the right to schedule a medical appointment switched to the defendant, and that when the applicant attended the medical appointment scheduled by the defendant and retained her ability to conduct discovery, including the right to obtain a report from a primary treating physician and to depose the panel qualified medical evaluator if she wished to challenge his findings, the applicant failed to demonstrate the requisite prejudice or harm to justify removal.

Commentary: The critical point reflected by the panel in Bogue is that, despite the fact that the PQME could not schedule an appointment within the 60-day time frame, applicant still got stuck with the doctor because her attorney did not inform defendant of the doctor’s unavailability within the ten days mandated by Labor Code Section 4062.2(d). In essence, the WCAB panel here is placing emphasis on the applicant’s duty to inform the defendant of the PQME’s unavailability over the doctor’s actual unavailability. The take-away here is that if the applicant’s attorney does not communicate an objection to the PQME within the ten-day time frame, defendant obtains the right to schedule the QME regardless of when the particular physician may be available.

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