The Workers’ Compensation Appeals Board (WCAB) issued a key en banc ruling in Vazquez v. Inocensio Renteria. The Board clarified when parties can get a replacement QME panel if a Qualified Medical Evaluator (QME) delays scheduling an appointment. It ruled that parties do not automatically receive a replacement panel when QMEs miss the set deadlines.
Understanding QME Panel Scheduling Requirements
California Code of Regulations (CCR) 31.3 sets the rules for scheduling medical evaluations with QMEs. CCR 31.3(e) says that if a party cannot get an appointment within 90 days, they may waive the right to a replacement and accept one up to 120 days after their original request. The regulation also allows either party to report if a QME is unavailable. If the QME cannot schedule an appointment within 120 days, a replacement panel must issue—unless both parties agree to waive this deadline.
When Can a QME Panel Be Replaced?
CCR 31.5(a)(2) lets the medical director issue a replacement panel if the original QME cannot schedule an exam within 90 days or, if waived, within 120 days of the initial request. However, this rule does not guarantee automatic replacement. The decision depends on other factors.
Case Background: Vazquez v. Inocensio Renteria
In the Vazquez case, the QME first evaluated the applicant on May 21, 2021, then issued supplemental reports after reviewing more records. On July 29, 2024, the applicant asked for a re-evaluation. The next available date was December 2, 2024, 127 days later. The defendant requested a replacement panel under CCR 31.3(e) and CCR 31.5(a)(2), citing the delay.
The Division of Workers’ Compensation Medical Unit issued the replacement panel on September 12, 2024. At trial, the Workers’ Compensation Judge (WCJ) sided with the defendant and granted the replacement.
WCAB’s En Banc Ruling on QME Panel Replacement
The WCAB reversed the WCJ’s decision. It clarified that only the WCAB has the authority to decide if a QME panel replacement is appropriate. The Board explained that the Labor Code grants parties statutory rights to replace a QME only in specific cases, such as ex parte communication or failure to issue a timely report. Since this involved a represented employee, the WCAB ruled that panel replacement falls under its discretion.
Factors Considered in Replacement Decisions
The WCAB stated that CCR 31.3 and 31.5 are valid, but they do not give an automatic right to a replacement panel. Instead, the Board balances several factors, including:
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The length of delay caused by the QME’s unavailability
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The prejudice caused by the delay compared to the prejudice of restarting the evaluation process
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Efforts made to improve the QME’s availability
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Case-specific facts, including whether either party waived objections
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The WCAB’s constitutional duty to deliver justice fairly and efficiently
Key Takeaways and Impact
This ruling makes clear that missing CCR 31.3(e) deadlines alone does not automatically grant a party a replacement panel. The WCAB may order a replacement for good cause, ensuring fair and efficient decisions.
The decision applies to both initial and re-evaluations. It confirms that the Labor Code does not force automatic replacement of QMEs who miss appointment deadlines. Workers’ Compensation Judges have discretion to evaluate the facts and balance harms in each case.