Have you ever been stuck in a constant loop of replacement panel requests, one after another, ultimately causing significant delay in the discovery process? Nowadays, the panel QME process is almost inevitable in the handling of every workers’ compensation claims to resolve any and all disputed medical issues, particularly in cases where the applicant is represented. Yet, some parties take advantage of the PQME scheduling process to achieve an ulterior goal, which often times causes unnecessary delay in the discovery process.
Generally speaking, if an initial appointment with a PQME cannot be scheduled within 60 days, the one who scheduled the appointment can request a replacement panel per California Code of Regulations section 31.5(a)(2). Also, if the initial appointment cannot be scheduled with 90 days, then any party can request a replacement panel under the same authority.
Under the Emergency Regulation in response to COVID-19 (effective on May 14, 2020 and ending on January 12, 2021), the scheduling requirement is extended by 30 days, meaning the requesting party can only request a replacement panel if the PQME is unable to schedule the initial appointment within 90 days, and any party can request a replacement panel if the PQME is unable to schedule the initial appointment within 120 days.
Now, a party can use this rule and play the game of the system. Some applicants’ attorney’s offices would adhere to the rule of not waiving the 60-day requirement (or 90-day requirement during the time when the Emergency Regulation is in place) and automatically request a replacement panel when the PQME is unable to schedule an appointment within the applicable timeframe (even if the PQME is available for an appointment on the 61st day).
The Medical Unit usually takes about two to three weeks to respond to a replacement panel request. By the time we receive the panel and complete the striking process, it may be a month later, and we are back to where we were in the beginning. Often times, if the parties can just agree to go forward with the original panel, the injured worker would have already been seen by the PQME.
What can we do to combat such practice? The answer is simply to be more diligent than the opposing party. The right to waive the 60-day requirement (or 90-day requirement during the time when the Emergency Regulation is in place) is held by the party with the legal right to schedule an appointment. Said party can waive such right by accepting an appointment beyond 60 days (or 90 days during the time when the Emergency Regulation is in place). That being said, if the accepted appointment is beyond 90 days (or 120 days during the time when the Emergency Regulation is in place), then the other party can object to it and request a replacement panel.
Now, generally speaking, the injured worker always has the right to first schedule an appointment with the remaining PQME after the competition of the striking process. However, if they failed to do so within 10 business day after the competition of the striking process, then defendant has the legal right to schedule an appointment.
Therefore, defendant must act diligently and proactively. If applicant’s attorney does not schedule an initial appointment with the remaining QME within the applicable timeframe, then defendant must take control of the scheduling process. This way, we can hold the right to waive the 60-day requirement. Applicant’s attorney cannot object to an appointment we schedule on that basis.
Lastly, we should not always take the opposing party’s assertion regarding the QME’s availability as fact. After receiving a replacement panel QME request, we would always call the remaining QME and confirm his or her availability.
Here at Yrulegui & Roberts, we strive at being proactive and diligent in our claim handling process to avoid any unnecessary delay and to bring a claim to speedy resolution at all possible turns. Please contact us at (559) 222-0660 for further information.