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In a case where the parties made five panel requests to the Medical Unit, four panel lists failed to yield a physician capable of offering a regulation-compliant appointment window, the WCJ abandoned the PQME process and directly appointed a “Regular Physician” who was available to evaluate the applicant.

In this case, Tyree Foster claimed to have injured his back on November 29, 2016, while working for Express Employment.Professionals. His claim was denied.

An MSC was set regarding a “panel dispute” and indicating that the parties were in need of a replacement panel of QMEs. Defendants objected, averring that a hearing would be moot or premature because the Medical Unit had recently issued a new replacement panel list.

The applicant made the initial QME panel request on April 11, 2017; After the remaining QME from the original panel (Dr. Shen) turned out to be unavailable, the parties submitted a replacement panel request on May 22, 2017; The remaining doctor from the first replacement panel (Dr. Herny) was scheduling in 2018, so the parties sought another replacement panel; From the second replacement panel, the remaining QME was Dr. Grant, whose earliest available appointment was seven months out, so another replacement panel was requested; The remaining doctor from the third replacement panel (Dr. Cheng) was not available sooner than April 2018, leading the parties to submit yet another replacement panel request on November 21, 2017. As of the time of this MSC, that request was pending at the Medical Unit.

Attorneys for Mr. Foster asked the WCJ for help moving the case forward, claiming he had lost his job and was without benefits “due to the difficulty of being unable to obtain a medical evaluation.” No medical reports were filed at the time of the MSC.

The WCJ found that the record was not sufficiently developed to allow adjudication of AOE/COE. And that the parties have been diligent in pursuing medical-legal discovery, but have been unsuccessful for reasons that are beyond their control (and beyond his comprehension).

In the interest of expediting resolution of compensability in this case, as well as potentially other medical questions the WCJ ordered that applicant to be examined by Dr. Joel Renbaum for all medical-legal purposes in this case. The parties were ordered to communicate with Dr. Renbaum in the same manner as they would if he were appointed as a Qualified Medical Evaluator. The Order was pursuant to the authority of Labor Code Section 5701.

The employer Petitioned for Removal and asked that the order be rescinded. They assert that the order exceeds the lawful bounds of the WCJ discretion.The WCAB denied Removal in the case of Foster v Express Employment Professionals.

LC 5701 provides that “The appeals board may also from time to time direct any employee claiming compensation to be examined by a regular physician.” Contrary to defendants’ contention, the Labor Code does not grant them an unconditional right to participate in the panel QME selection protocol. The statute limits litigants’ options for obtaining medical-legal evidence, but it does not require or entitle them to select a QME.