What the panel ordered
Petition for Removal granted; Findings and Order affirmed except amended to deny defendant's request for replacement QME panel.
Petition for Removal of Findings and Order issued on March 6, 2023 granted by the Appeals Board, which affirmed the Findings and Order except that defendant's request for a replacement QME panel was denied.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Appeals Board found that although the applicant violated the 20-day service requirement under Labor Code section 4062.3, the defendant was not prejudiced to a degree warranting a replacement QME panel, considering the Suon factors and the long involvement of Dr. Blackwell as QME.
From the decision · page 4Clearly, the cover letter of January 19, 2023 to the QME for the reevaluation set on January 23, 2023 was not served on the defendant twenty days in advance of the evaluation as required by Labor Code Section 4062.3. Sections 4062.3(b) and (e) are mandatory as each party "shall" comply with service of both information and communications intended for the QME twenty days in advance of the evaluation. The plain reading of the statute requires strict application. Applicant's cover letter, served on defendant on January 19, 2023 after close of business for the evaluation date of January 23, 2023 was in violation of Labor Code section 4062.3. Defendant's objection dated January 30, 2023, was within ten calendar days of the first service of applicant's cover letter and is timely and valid.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's January 19, 2023 cover letter to QME was served less than 20 days before the reevaluation, violating Labor Code section 4062.3.
Favours Defendant prevailed
This violation triggered defendant's timely objection and request for replacement QME panel.
From the decision · page 4Clearly, the cover letter of January 19, 2023 to the QME for the reevaluation set on January 23, 2023 was not served on the defendant twenty days in advance of the evaluation as required by Labor Code Section 4062.3. Sections 4062.3(b) and (e) are mandatory as each party "shall" comply with service of both information and communications intended for the QME twenty days in advance of the evaluation. The plain reading of the statute requires strict application. Applicant's cover letter, served on defendant on January 19, 2023 after close of business for the evaluation date of January 23, 2023 was in violation of Labor Code section 4062.3. Defendant's objection dated January 30, 2023, was within ten calendar days of the first service of applicant's cover letter and is timely and valid.
No evidence that the QME was confused or prejudiced by the late cover letter; parties can object to opinions exceeding scope.
Favours Applicant prevailed
Lack of prejudice to defendant weighed against granting replacement QME panel.
From the decision · page 7In this case, as stated in the Report, applicant's January 19, 2023 cover letter may confuse issues in that it identifies a wide range of medical questions potentially subject to evaluation by the QME. (Report, pp. 6-7.) However, we are unable to discern evidence that any confusion of issues on the part of the QME resulted from the letter or caused prejudice to defendant. In any event, the parties remain able to object to any opinions of the QME that exceed his scope of work and the WCJ may then develop the record thereon.
Dr. Fred Blackwell's long involvement as QME added to his ability to evaluate the medical issues.
Favours Applicant prevailed
Supported denial of replacement QME panel under Suon factors.
From the decision · page 7Additionally, pursuant to Suon, we have considered the length of time Dr. Blackwell has served as QME in this case and are persuaded that his years-long involvement adds considerably to his ability to evaluate the medical issues herein.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Blackwell served as the QME and was involved in the case for years, including the initial evaluation and reports used for the 2019 settlement. The Appeals Board found his long involvement added to his ability to evaluate the medical issues.
From the decision · page 1Applicant seeks removal of the Findings and Order (F&O) issued on March 6, 2023, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) Dr. Fred Blackwell served as the QME and the parties settled the case on July 19, 2019; (2) a petition to reopen was filed on January 13, 2022; and (3) applicant's January 19, 2023 cover letter to QME Dr. Blackwell ahead of his reevaluation scheduled for January 23, 2023 was not served on the opposing party twenty days in advance as required by Labor Code Section 4062.3,1 and defendant properly objected to the letter and is entitled to a replacement QME panel.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4062.3
Labor Code section 4062.3(b) requires service of information to QME 20 days before evaluation; violation may warrant remedy.
Strict application of 20-day service requirement; defendant's objection timely and valid.
From the decision · page 4Clearly, the cover letter of January 19, 2023 to the QME for the reevaluation set on January 23, 2023 was not served on the defendant twenty days in advance of the evaluation as required by Labor Code Section 4062.3. Sections 4062.3(b) and (e) are mandatory as each party "shall" comply with service of both information and communications intended for the QME twenty days in advance of the evaluation. The plain reading of the statute requires strict application. Applicant's cover letter, served on defendant on January 19, 2023 after close of business for the evaluation date of January 23, 2023 was in violation of Labor Code section 4062.3. Defendant's objection dated January 30, 2023, was within ten calendar days of the first service of applicant's cover letter and is timely and valid.
Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803
Appeals Board has discretion to determine remedy for section 4062.3(b) violation considering Suon factors.
Considered factors including prejudicial impact, length of QME involvement, and good faith efforts.
From the decision · page 6While the Labor Code provides no statutory remedy for a section 4062.3(b) violation, the Appeals Board has wide discretion to determine what, if any, remedy is appropriate. (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1815 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's January 19, 2023 cover letter to QME was served less than 20 days before the reevaluation, violating Labor Code section 4062.3.
From the decision · page 4Clearly, the cover letter of January 19, 2023 to the QME for the reevaluation set on January 23, 2023 was not served on the defendant twenty days in advance of the evaluation as required by Labor Code Section 4062.3. Sections 4062.3(b) and (e) are mandatory as each party "shall" comply with service of both information and communications intended for the QME twenty days in advance of the evaluation. The plain reading of the statute requires strict application. Applicant's cover letter, served on defendant on January 19, 2023 after close of business for the evaluation date of January 23, 2023 was in violation of Labor Code section 4062.3. Defendant's objection dated January 30, 2023, was within ten calendar days of the first service of applicant's cover letter and is timely and valid.
No evidence that the QME was confused or prejudiced by the late cover letter; parties can object to opinions exceeding scope.
From the decision · page 7In this case, as stated in the Report, applicant's January 19, 2023 cover letter may confuse issues in that it identifies a wide range of medical questions potentially subject to evaluation by the QME. (Report, pp. 6-7.) However, we are unable to discern evidence that any confusion of issues on the part of the QME resulted from the letter or caused prejudice to defendant. In any event, the parties remain able to object to any opinions of the QME that exceed his scope of work and the WCJ may then develop the record thereon.
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About this page
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