The Race to the Qme Panel

• Publication year: 2021
• Author: Zachary M. Frost, Esq.

The Race to the QME Panel

Zachary M. Frost, Esq.

Fremont, California

A festering point of legal consternation among many workers' compensation practitioners is the lack of clarity regarding when and how a party is permitted to request a qualified medical examiner (QME) panel pursuant to Labor Code sections 4060 and 4062.2. The problem is founded, in large part, on the ambiguity within the statutes themselves. This ambiguity becomes obvious in various panel decisions that have issued on this topic in the years since the 2012 SB 863 legislative reforms to the QME panel selection process. However, a glimmer of hope arises with the emerging direction of recent panel decisions dealing with this fundamental procedural issue. Knowing how these rules are being applied is essential for practitioners because whichever party validly submits the request first gets to select the specialty of the panel—for example, when the defendant wants an orthopedic panel and the applicant wants a pain management or chiropractic one.

Until recent years, most practitioners believed that within a stated dispute over compensability, a request for a QME panel required, prior to making the request, issuance of either a denial or delay letter by a defendant, followed by notice to the opposing party of an intent to request a QME panel under Labor Code section 4060. Labor Code section 4062.2(b) provides that when an injured employee represented by counsel is seeking a medical evaluation under Labor Code section 4060, a QME panel may be requested

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....

What is lacking here is a clear statement of what constitutes "a request for a medical evaluation pursuant to Section 4060."

Two administrative regulations (8 CCR 9812(g)(3) and 8 CCR 9812(i)(1)(B)) governing requests for a comprehensive medical-legal evaluation under Labor Code section 4060 require that if the employer provides an injured worker with a QME request form in a delay or denial letter, the employer must also give notice in its letter as follows: "If you do not submit the form within 10 days, we will have the right to submit the form." This seems to suggest both that a denial or delay letter is necessary to begin the QME panel selection process and, further, that notice of intent to request a panel is required prior to one's actually requesting a panel. Unfortunately, this statutory and...