The Workers’ Compensation Appeals Board clarified that parties in a represented case cannot automatically replace a QME who is not scheduling re-evaluations in a timely manner, according to an en banc decision released on Monday afternoon.
The Appeals Board issued the decision in the case of Abel Vazquez v. Inocensio Renteria; Zenith Insurance Co., 5/19/25, 90 Cal.Comp.Case (unassigned).
FACTUAL BACKGROUND
In the Vazquez case, the parties had proceeded to QME Dr. Ira Fishman for evaluation of applicant’s internal complaints, and sought a re-evaluation with him. However, Fishman gave a date that was more than 120 days from the date of the request, as his office gave a date that was 127 days after the request.
This exceeded the time limits in CCR 31.3, which states that:
- A party with the right to schedule may schedule a QME evaluation within 90 days, and if they desire, may waive the 90-day requirement and schedule within 120 days.
- If scheduling outside of 120 days, the 120-day deadline can be waived if both parties opt to waive the 120-day deadline.
Here, defendant Zenith instead sought a replacement panel of QMEs to replace Fishman due to the untimely scheduling outside of the 120-day window. The applicant’s attorney objected to the replacement panel, contending that the time limits in CCR 31.3 only apply to initial evaluations and not to subsequent evaluations.
PROCEDURAL HISTORY
The DWC Medical Unit issued a replacement panel. The parties litigated the issue at trial, and the trial judge ruled that defendant was entitled to a replacement panel because the QME was unable to set an appointment within 120 days.
The applicant’s attorney filed a petition for removal, but the WCAB treated it as a petition for reconsideration.
APPEALS BOARD
The WCAB granted the applicant’s attorney’s petition as a request for reconsideration and returned the matter back to the trial court for further analysis. In its decision, the commissioners stated that when a QME is unable to schedule in a timely manner pursuant to the regulations, that the WCAB has discretion to order a replacement QME for good cause.
The WCAB made the distinction between failing to schedule timely and when a QME does an initial evaluation and fails to issue an initial evaluation report within 30 days. They clarified that when a QME fails to issue an initial evaluation report within 30 days, then LC 139.2(j)(1) and LC 4062.5 clearly allows parties to replace the QME.
“In a represented case, the Labor Code expressly allows replacement of a QME who drafts an untimely report following a medical evaluation; however, it does not compel replacement of a QME who is not timely available to set an appointment,” the commissioners wrote. The failure to set a timely appointment falls “within the Appeals Board’s broad equitable powers,” the WCAB determined.
So when a QME is scheduling in a untimely manner, the WCAB cited back to a factors test originating from a panel decision named Corrado v. Aquafine Corporation, 2016 Cal. Wrk. Comp. P.D. LEXIS 318. In Corrado, the court said that a judge should weigh the five following factors when deciding whether to replace a QME who couldn’t schedule timely, which are:
factors are:
- The length of delay caused by the QME’s unavailability.
- The amount of prejudice caused by the delay in issuing the supplemental report 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 or keeping the current QME, including whether a party may have waived its objection.
- The constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character.” (Cal. Const., art. XIV, § 4.)
The WCAB sent the case back down to the trial level for the trial judge to consider those five factors in the Vazquez case. The commissioners also noted that their decision is prospective in nature, which means that it applies to cases where this issue has not yet been decided, and to new disputes after May 19, 2025.
This differs from retroactive application. Had the court said that its decision applied retroactively, then that could have undone prior court orders that did not consider the Corrado factors.
ANALYSIS
Frankly, your humble blogger has already been aware of the Corrado factors for at least seven years now and has been citing them in petitions to replace a QME for a long time now. For us at the Law Offices of Bradford and Barthel, this holding is not a surprising one as it applies to QME re-evaluations and late supplemental reporting from QMEs.
However, the one area where this decision could have been a little clearer is how it impacts QMEs who are unable to timely schedule initial evaluations in represented cases. The facts of the case clearly describe a situation where the QME being replaced is an established QME who has already reported in the case.
On one hand, it follows that this decision shouldn’t apply to QMEs who can’t timely schedule an initial evaluation, because the decision did not feature analysis of an initial evaluation being scheduled in a untimely manner.
However, a plain reading of the decision suggests that if a QME is unable to timely schedule an initial evaluation in a represented case, then that should be decided by the WCAB as well based on the Corrado factors.
As you can tell, the last few sentences are conflicting about whether this applies to initial evaluations. At this point, your humble blogger has to assume that it does apply to initial evaluations, because that is what the decision appears to say.
That being said, your humble blogger wishes the commissioners had gone out of their way to clarify whether this ruling applies to initial evaluations as well.
IT AIN’T OVER
Technically, this dispute is not over. Zenith has the right to ask the WCAB to reconsider its opinion, and also has the right to file a petition for writ of review with the applicable state appellate court. We at the Law Offices of Bradford and Barthel will be happy to continue to monitor this case and keep you updated on any notable developments.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin or Louis A. Larres. Mr. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
Louis A. Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office, and the director of the firm’s Appellate Division. Please feel free to contact Louis at llarres@bradfordbarthel.com or at (559) 221-6500.
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