ADJ12549416 — California WCAB decision

What the panel ordered

Petition for Reconsideration/Removal granted; April 19, 2022 Findings and Order rescinded; matter returned to trial level for further proceedings

Petition for Removal filed by defendant on May 16, 2022, challenging Findings and Order issued April 19, 2022 by WCJ; WCJ denied removal and vacated replacement panel; WCAB grants reconsideration, rescinds April 19, 2022 F&O, and returns matter to trial level for further proceedings

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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.

QME/AME processRemandedcirculatory system · psyche

The WCJ's finding that the QME report was untimely and that the defendant's objection influenced the QME to not issue a report was not supported by the record; the Appeals Board found the objection letter was timely but the record did not establish the QME received or was influenced by it, warranting removal and further development.

From the decision · page 2FACTS Applicant claims to have sustained industrial injury to his circulatory system and psyche while employed as a property manager for defendant across two dates. (Minutes of Hearing and Summary of Evidence, April 6, 2022, p. 2, line 13, through p. 3, line 5.) This matter proceeded to trial on the issue of a replacement panel request by defendant. (Ibid.) It appears that applicant was examined by QME Daniel Watson, Ph.D., on October 22, 2021. (Defendant's Exhibit C, QME Appointment Notice, August 31, 2021.) Under emergency regulations in effect, the QME had 45 days to issue an initial report. On the 45th day following the evaluation, defendant issued an objection letter and requested a replacement panel due to untimely reporting. (Defendant's Exhibits A and B.) Defendant's objection letter included an objection to any billing issued by the QME in conjunction with the evaluation. (Defendant's Exhibit A.) It does not appear that the QME has produced a report from the evaluation, as no report has been offered into evidence.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant's objection letter was issued on the last day the QME had to issue the report

Favours Defendant prevailed

Supports defendant's position that objection was timely

From the decision · page 2FACTS Applicant claims to have sustained industrial injury to his circulatory system and psyche while employed as a property manager for defendant across two dates. (Minutes of Hearing and Summary of Evidence, April 6, 2022, p. 2, line 13, through p. 3, line 5.) This matter proceeded to trial on the issue of a replacement panel request by defendant. (Ibid.) It appears that applicant was examined by QME Daniel Watson, Ph.D., on October 22, 2021. (Defendant's Exhibit C, QME Appointment Notice, August 31, 2021.) Under emergency regulations in effect, the QME had 45 days to issue an initial report. On the 45th day following the evaluation, defendant issued an objection letter and requested a replacement panel due to untimely reporting. (Defendant's Exhibits A and B.) Defendant's objection letter included an objection to any billing issued by the QME in conjunction with the evaluation. (Defendant's Exhibit A.) It does not appear that the QME has produced a report from the evaluation, as no report has been offered into evidence.

Record does not establish that the QME received or was influenced by the objection letter

Favours Applicant prevailed

Undermines WCJ's assumption that the QME did not issue report due to defendant's letter, warranting removal for further development

From the decision · page 4While it does appear that defendant's objection issued on the final day the QME had to issue the report, the WCJ's opinion relies upon an assumption that the QME received that objection and was influenced by defendant's letter to not issue a report on time. The present record does not establish such facts. As the WCJ's decision is not properly supported by the record, removal is warranted to allow further development.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 31.5(a)(12)

A party must timely object to an untimely QME report per AD Rule 31.5(a)(12)

The regulation does not exceed the scope of Labor Code section 4062.5 and requires timely objection to preserve the right to a replacement evaluation.

From the decision · page 4As to defendant's first argument, we find that a party must timely object to an untimely report per AD Rule 31.5(a)(12). (Cal. Code Regs., tit. 8, § 31.5(a)(12).) Defendant's argument to the contrary is not persuasive. Rule 31.5 does not exceed the scope of Labor Code section 4062.5, which expressly states that when a formal medical evaluation is not timely completed, "a new evaluation may be obtained upon the request of either party[.]" (§ 4062.5, (emphasis added).) First, the Legislature did not use mandatory language in the statute. To the contrary, the statute says a party `may' obtain a new evaluation. May is permissive. (§ 15.) Next, the statute expressly requires that a party request the new evaluation. The fact that the regulation refers to this request as an `objection' is entirely appropriate and does not exceed the scope of the enabling statute. Finally, the regulatory requirement that an objection issue prior to the QME's service of the report is an equitable principle grounded in waiver, laches, and estoppel. If a party is genuinely concerned about timeliness, they must object timely.

Labor Code 4062.5

Labor Code section 4062.5 allows a party to request a new evaluation if the original is untimely

The statute is permissive and requires a party request; the regulation's objection requirement is consistent with this.

From the decision · page 4As to defendant's first argument, we find that a party must timely object to an untimely report per AD Rule 31.5(a)(12). (Cal. Code Regs., tit. 8, § 31.5(a)(12).) Defendant's argument to the contrary is not persuasive. Rule 31.5 does not exceed the scope of Labor Code section 4062.5, which expressly states that when a formal medical evaluation is not timely completed, "a new evaluation may be obtained upon the request of either party[.]" (§ 4062.5, (emphasis added).) First, the Legislature did not use mandatory language in the statute. To the contrary, the statute says a party `may' obtain a new evaluation. May is permissive. (§ 15.) Next, the statute expressly requires that a party request the new evaluation. The fact that the regulation refers to this request as an `objection' is entirely appropriate and does not exceed the scope of the enabling statute. Finally, the regulatory requirement that an objection issue prior to the QME's service of the report is an equitable principle grounded in waiver, laches, and estoppel. If a party is genuinely concerned about timeliness, they must object timely.

ADJ12549416 · April 26, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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