Every seasoned workers’ compensation attorney knows that the specialty of the Panel Qualified Medical Evaluator has a significant impact on a claim.
Once an applicant’s claim requires the use of a medical-legal evaluator, certain rules must be followed. In order to initiate the medical evaluation process, we must first look to see if the applicant is represented.
If the applicant is unrepresented, meaning they are “Pro Per”, Labor Code §4062.1 governs the rules the parties must follow. Per Labor Code §4062.1, “if either party initiates the medical evaluation pursuant to Sections 4060, 4061 and 4062, either party may submit the form prescribed by the Administrative Director requesting the Medical Director assign a panel of three Qualified Medical Evaluators in accordance with Section 139.2.”
When applicant is unrepresented, however, the employer may not submit the form to request the panel until 10 days have passed after the employer has furnished the form to the employee. If the employee fails to make their selection within the allotted 10 days, the employer now gets to submit the form and pick the specialty.
If a party is represented, however, different rules must be followed to obtain the panel. Labor Code §4062.2(b) provides that:
“No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062, either party may request the assignment of a three- member panel of qualified medical evaluators to conduct a comprehensive medical evaluation.”
To summarize, Labor Code §4062.2(b) requires one attorney to submit an objection letter to the other and wait 10 days before requesting a QME Panel. Of course, if you are mailing the objection letter, the mailbox rule provides an additional five days. Thus, after the fifteenth day (10+5), a party can request a panel.
This becomes the tricky part as represented parties may only request a panel online using the form provided on the Department of Industrial Relations website. It does not matter which attorney sent the objection letter. Once the 15th day passes since the date of the objection letter, either attorney can put in a request for their selected panel specialty at exactly 5:00 p.m. pacific time. This means that whichever attorney hits the submit button on the panel request form at 5:00 p.m. gets to utilize their desired specialty.
Of course, the losing party can dispute the selected specialty. However, this requires more time and litigation. Thus, in order to prevent delaying a claim due to an undesired specialty selection, always pay attention to correspondence from the opposing side to ensure you are aware an objection has been made and you are prepared to be first to submit your panel request form with the desired specialty.
Conclusion
The takeaway of this article is to understand different rules apply depending on whether an applicant is represented. The Labor Code is specific, and deadlines are important when securing a panel for a medical evaluation. The specialty of the selected QME panel can make or break your case. Understanding the differences in the Labor Code will keep you one step ahead of the opposing party.
At Yrulegui & Roberts, every correspondence is reviewed by our defense team to ensure a deadline is never missed. Our attorneys are trained to make sure any objection letter we send or receive from applicant’s counsel is calendared to timely request a panel to maintain the desired specialty. We understand the importance of detail and ensure that each case is handled with the upmost care. If you have any questions regarding a panel, or are needing to have one replaced, do not hesitate to give us a call. We are here to help every step of the way!
