by David Grant –
An instructive panel decision issued recently concerning the time frames for objecting to untimely panel QME reports. The WCAB in Teytud v. Clean Innovation Corp. (36 CWCR283) (ADJ 3371087) ruled the defendant waived its right to object to an untimely PQME report.
The original PQME delayed providing a report for over five months. In response to a defense motion, the WCJ ordered the appointment of a new PQME. Applicant attorney filed a Petition for Removal with the WCAB.
The panel based its decision on Labor Code Section 4062.5, which can be summarized as follows:
If a panel QME fails to complete the medical evaluation within the time frame established in Labor Code 139.2(j)(1) (30 days with certain limited exceptions), then a new evaluation may be obtained at the request of either party as provided for in Labor Code 4062.1 or 4062.2.
It should be noted that section 4062.5 does not expressly require an objection be made nor does it contain any time limitations for making an objection. Nevertheless, the panel reasoned defendant had waived its right to a new evaluation by not objecting when it knew the report was untimely. In this case, the report was due on November 1, 2007, 30 days after the examination date. Defendant did not object to the timeliness of the report until March 28, 2008, after receiving the report. The panel was particularly concerned with the potential for “doctor shopping” where reports are objected to only after they are received.
The panel concluded a party wishing to object to an untimely QME report must do so promptly in order that another report can be obtained to resolve the disputed medical issue as quickly as possible.
The decision in this case raises more questions than it answers. First, one must define the term “promptly.” If a statute does not specify a particular time period such as 15 to 30 days, the courts usually make a determination based upon what is reasonable under the circumstances. Is an objection to an untimely panel QME report, served within 30 days after the report was due, prompt? Must late report receive an objection before it is received? Within 10 days of receipt? A month? To be on the safe, I recommend objecting within 10 days after the 30 day due date.
Additional questions arise if a party is not timely served with a report which was arguably completed within 30 days, but the service was delayed and—in the interim—a prompt objection to timeliness is filed. What then?
A more disturbing question arises in a situation where there is no prompt objection—or no objection at all—and six months goes by without a report. Have the parties forever waived the right to object to timeliness?
For practical purposes, Labor Code 4062.5 states “a new evaluation may be obtained upon the request of either party” if the time limitations are not met by the panel QME.
Failure to timely object and request a new panel evaluation is deemed a waiver of that right, and the parties thereafter may be at the mercy of the panel QME absent further case law on this subject. 1
Diary those files and watch those reporting deadlines closely!
1 This opinion notwithstanding, it does appear clear that the defense may not be liable for paying for a late report… even if the objection is untimely. On this point Labor Code 4062.5 seems clear:
“Neither the employee nor the employer shall have any liability for payment for the formal medical evaluation which was not completed within the required timeframes unless the employee or employer, on forms prescribed by the administrative director (bold added), each waive the right to a new evaluation and eledfcts to accept the original evaluation even though it was not completed within the required timeframes.”
Given the italicized language, an express waiver of timeframes seems to be the only way an untimely PQME can successfully demand payment.
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