QME, WCAB, Yrulegui & Roberts

New WCAB En Banc Guidance on Replacing Unavailable QMEs

Posted on by Joseph Yrulegui

May 19, 2025

Introduction

In a significant en banc decision, Vazquez v. Renteria (Zenith Insurance Co.) (May 19, 2025) ADJ11017003 (Salinas District Office), the Workers’ Compensation Appeals Board (WCAB) clarified when a Qualified Medical Evaluator (QME) in a represented case may be replaced due to unavailability. The decision emphasizes that while Administrative Director (AD) rules (8 Cal. Code Regs. §§ 31.3, 31.5) set timeframes for QME availability, only the WCAB ultimately determines whether a replacement panel is valid and appropriate if there is a dispute.

Key Takeaways from the En Banc Decision

  • WCAB’s Exclusive Authority
    The WCAB reaffirmed that it—and not the Division of Workers’ Compensation’s Medical Unit—has the final authority to decide if a QME can be replaced. Although the AD’s regulations allow the Medical Unit to issue replacement panels, the ultimate validity of any replacement panel is determined through the judicial powers of the WCAB.
  • Replacement Panels: Before vs. After the First Evaluation
    • Before the First Evaluation: The decision acknowledges that AD Rule 31.3(e) sets a 90- to 120-day timeframe for scheduling any comprehensive medical-legal evaluation (including an initial one). However, simply missing that scheduling window does not automatically compel a new panel. Instead, the WCAB or a judge must decide if good cause exists to replace the QME (e.g., chronic unavailability, prejudice to the parties, etc.).
    • After the First Evaluation: Labor Code § 4062.5 and § 139.2(j)(1) specifically address replacing a QME who fails to issue a timely report after examining the injured worker. Unlike scheduling issues, once a QME has already performed an evaluation, these statutes grant a clearer statutory right to replace the QME if the final report is unreasonably delayed past the regulatory deadlines.
  • Balancing Factors for Unavailability
    When a QME cannot provide an evaluation date within 120 days (for a represented worker)—whether it is the first or a subsequent evaluation—the WCAB will apply a balancing test. Courts will consider:
  • The length of the delay;
  • Prejudice caused by waiting vs. “starting over” with a new QME;
  • Efforts made to fix scheduling obstacles;
  • Any specific case facts (including whether a party waived objections);
  • The constitutional mandate to handle cases expeditiously and inexpensively.
  • Prospective Application
    This new clarification applies prospectively to avoid unwinding prior replacement decisions and to maintain stability in the workers’ compensation system.
  • Procedural Background
    The decision also clarifies that when a ruling contains both final threshold issues (like employment or injury AOE/COE) and non-final orders (like QME replacement), it is a “hybrid” decision subject to the WCAB’s removal standard. A party must demonstrate irreparable harm if challenging an interlocutory order prior to a final decision.

Practical Implications for Claims Adjusters

  1. Distinguish Between Scheduling vs. Timely Reporting
    • Scheduling: If a QME cannot see the injured worker within 90–120 days—even for a follow-up exam—this is not automatically grounds for a new panel. Be prepared to demonstrate good cause for seeking a replacement.
    • Timely Reporting: Once a QME has actually seen the worker, the Labor Code provides stronger statutory grounds for replacement if the QME fails to issue the report on time (e.g., beyond the statutory 30-day window plus any permissible extensions).
  2. Document All Scheduling Efforts
    • Maintain a clear paper trail of calls, emails, and letters to the QME’s office.
    • If the QME’s office offers the first available date beyond 120 days, note all attempts to secure an earlier date or alternative arrangements.
  3. Evaluate Overall Prejudice
    • If the QME has not even met the applicant yet, consider whether a short delay is less prejudicial than restarting the process—particularly if the QME’s background or expertise is valuable to the case.
    • If there has already been a QME evaluation, evaluate how far along the QME is in generating reports. Abandoning a QME who has substantial familiarity with the file could prolong resolution.
  4. Secure Written Waivers Where Appropriate
    • The regulations permit a written waiver of the 120-day limit. If both parties (through counsel) prefer to wait for a particular QME, get this agreement in writing.
  5. Collaborate with Counsel on Strategy
    • Consult with your defense attorney if you believe a QME’s unavailability is prejudicial. Weigh the pros and cons of restarting with a new QME (i.e., added cost, extended timeline, risk of repeated depositions).
  6. Stay Current with DWC Guidance
    • The Administrative Director may update regulations on QME panels and scheduling. Remain vigilant for regulatory notices or rule changes that affect QME availability protocols.

Conclusion

The Vazquez en banc decision underscores a nuanced approach to QME replacement in represented cases. Before the first evaluation, a QME’s delay or scheduling issues alone do not automatically trigger replacement—good cause must be established. After the first evaluation, the Labor Code’s timeliness rules on reports provide a direct right to replace a QME who fails to serve a timely report.

Regardless of whether a replacement arises from pre-exam unavailability or post-exam delays, the WCAB encourages a balancing of factors. For claims adjusters, it is crucial to document all scheduling efforts, analyze potential prejudice, and coordinate closely with counsel to determine the most efficient path to resolve medical-legal disputes.

About Our Firm

At Yrulegui & Roberts, our defense team has extensive experience navigating California’s workers’ compensation system. From our offices in Fresno, Bakersfield, Salinas, Sacramento, Pasadena, and San Diego, we focus on providing strategic and cost-effective representation to employers, insurers, and third-party administrators. If you have questions about how this en banc decision could impact your claims, contact us today to see how we can tailor a solution that fits your needs.

Disclaimer: This post is intended for informational purposes only and does not constitute legal advice. Always consult with qualified counsel regarding your specific case.

Joseph Yrulegui