Tempest in a Timepot

Tuesday, November 1, 2011 | 0

It may be that California has taken yet another step in substituting form over substance by pinning down, almost to the last minute, the time the parties must wait and attempt to negotiate an Agreed Medical Examiner before requesting a panel QME.

In Tsegay Messele v. Pitco Foods, Inc., 76 Cal. Comp. Cases 956, (ADJ7232076)., the Workers' Compensation Appeals Board issued an en banc decision that the time period set forth in Labor Code § 4062.2(b) for seeking an agreement on an AME (and during which you may not request a QME panel) starts with the first date of the first written proposal objecting to the report of a treating physician and proposing an AME, and includes the last day. It further noted the time period (10 days) is extended by CCP 1013(a) another five days in most instances, but in some cases (for parties outside California) for as much as another 15 days. There is no hedge room in the procedure even when you really don’t want to use an AME. Making the request early, even by one day, will disqualify it.

A recent inquiry to the DWC Medical Unit indicates that, for represented parties, the Unit is just now getting around to proper requests made more than 90 days ago, meaning that, from the time you decide you really want a panel QME, you will probably have to wait at least 100 days before you receive a panel list to review. After that, following the process, you will be looking at probably at least another eight weeks before the exam can take place. We used to shun Agreed Medical Examiners because of the lengthy delays involved but in many cases we are finding far less technical booby traps and even less delay in getting to agreed doctors to resolve medical questions. It is something to consider in the appropriate case.

Editor's note: We tried making the same inquiry of the medical unit as we completed this issue. After listening to an interminably long message and selecting an option to get info on the date of requests currently being processed, we were advised that our request was invalid. Why are we not surprised?

The Messelle decision is here.

Howard Stevens is an attorney in the Orange, Calif. office of Clawson & McDermott and editor of the law firm's Legal Briefs newsletter. This column was reprinted from that publication with his permission.