ADJ17646368 · December 16, 2024

The court found no good cause for the defendant's unilateral cancellation of the QME exam less than six business days before the appointment, constituting bad faith and unnecessary delay, warranting attorney's fees against the defendant.

From the decision · page 8The key determination in this matter is whether Petitioner showed good cause for cancellation of a duly scheduled QME examination within six business days of the appointment. Petitioner argues that a pending decision from the Medical Director constituted good cause, but the Court had already held two MSC's waiting for the Medical Director's decision without receiving one.

The court found insufficient evidence to find the selected gastroenterology specialty inappropriate and denied the request for a replacement QME panel.

From the decision · page 11This appears to be a finger injury case with minimal residual orthopedic disability after corrective surgery, with the possibility of some other issues as a result of the injury and/or medication. The Court notes that this is not yet a question of additional panels, but of the initial panel, and it appears that Applicant met the procedural requirements for selection of the initial panel specialty.

Defendant unilaterally cancelled the QME exam less than six business days before the scheduled appointment without court approval

Favours Applicant prevailed

This was found to be without good cause, constituting bad faith and causing unnecessary delay, leading to attorney's fees against defendant

From the decision · page 8The key determination in this matter is whether Petitioner showed good cause for cancellation of a duly scheduled QME examination within six business days of the appointment. Petitioner argues that a pending decision from the Medical Director constituted good cause, but the Court had already held two MSC's waiting for the Medical Director's decision without receiving one.

Selected QME panel specialty was gastroenterology for internal injury claim despite finger injury

Favours Defendant prevailed

Court found insufficient evidence to deem the specialty inappropriate, denying replacement panel request

From the decision · page 11This appears to be a finger injury case with minimal residual orthopedic disability after corrective surgery, with the possibility of some other issues as a result of the injury and/or medication. The Court notes that this is not yet a question of additional panels, but of the initial panel, and it appears that Applicant met the procedural requirements for selection of the initial panel specialty.

Scheduled for QME exam on 05/21/2024 to evaluate internal injury claim; court found evaluation by internist medically appropriate.

From the decision · page 7Applicant's counsel apparently did not submit any additional information to the Medical Unit in response to the letter, but scheduled a PQME exam with internist Dr. Rahban for 05/21/2024 [Applicant's Exhibit 1].

Labor Code section 5909

Petition for reconsideration must be acted on within 60 days of case transmission to Appeals Board per Labor Code section 5909(a)

The Appeals Board timely acted on the petition on December 16, 2024, within 60 days of transmission on October 17, 2024.

From the decision · page 1I. Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board. (b)

Labor Code sections 5900, 5902, 5903

A petition for reconsideration may only be taken from a final order or decision

The Appeals Board found the WCJ's order final as it determined substantive rights and denied the petition accordingly.

From the decision · page 2A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer)

Title 8 Cal. Code of Regs. 31.5(a)(10)

Replacement QME panel may be issued if Medical Director determines specialty medically inappropriate under Title 8 Cal. Code of Regs. 31.5(a)(10)

The court found no good cause for replacement panel as the selected specialty was appropriate.

From the decision · page 10Title 8 Cal. Code of Regs. § 31.5(a) provides that a replacement panel shall issue whenever one of sixteen enumerated grounds for replacement occurs. Defendant argues that it is entitled to a replacement QME panel for an appropriate specialty under Title 8 Cal. Code of Regs. § 31.5(a)(10). The section reads as follows:

8 Cal. Code of Regs. 34(h)

Cancellation of QME exam less than six business days before appointment requires good cause under 8 Cal. Code of Regs. 34(h)

Defendant's unilateral cancellation was untimely and without good cause, warranting attorney's fees.

From the decision · page 8The Court therefore deemed that Defendant had not demonstrated good cause for the unilateral cancellation, with Applicant already having waited nearly a year to be evaluated for her internal complaints and the record in need of development in that area. Failing to comply with a Regulation constitutes sanctionable conduct under 8 Cal. Code of Regs. § 10421(b)(4). Unilateral cancellation of a QME examination without good cause within six days of the exam is prohibited under 8 Cal. Code of Regs. § 34(h). Defendant proceeded to do so anyway, and then filed for a stay after the cancellation had been done. This has resulted in yet more delays in getting the Applicant evaluated for her internal injury claim, warranting the imposition of attorney's fees for the unnecessary delay.

Defendant's unilateral cancellation of QME exam less than six business days before appointment

From the decision · page 8The key determination in this matter is whether Petitioner showed good cause for cancellation of a duly scheduled QME examination within six business days of the appointment. Petitioner argues that a pending decision from the Medical Director constituted good cause, but the Court had already held two MSC's waiting for the Medical Director's decision without receiving one.