Alvaro Munoz claimed injury to various body parts, including his right wrist and right upper extremity, while employed by Cascade Drilling as a driller helper.

On March 9, 2021, QME Stuart Rubin, MD, MPH served an initial report. On that same day, applicant objected to the late report, and on March 11 filed a request for a new QME panel. On December 2, 2021, the parties proceeded to trial. The disputed issue was identified as: whether applicant is entitled to a replacement QME panel per Rule 31.5(a)(12).

The WCJ ordered a replacement QME panel in the Specialty of Pain Medicine.

The employer filed a Petition for Removal to reverse this order. The WCAB panel treated the Petition as one for reconsideration, granted reconsideration, and rescinded the F&O in the case of Munoz v Cascade-Drilling ADJ13545767 (Feb 2022).

The issue is whether Labor Code section 4062.5 precludes the application of Rule 31.5(a)(12) or whether the Labor Code and Administrative Director’s Rules can be harmonized, as applied to the facts of this case.

Both Labor Code section 139.2(j)(1)(A) and QME Rule 38 require the initial medical evaluations to be prepared and submitted no more than 30 days after the evaluator has seen the employee or otherwise commenced the medical evaluation procedure.

L.C. 4062.5 provides that if a panel QME fails to complete the formal medical evaluation within the time frames established by the administrative director, a new evaluation may be obtained upon the request of either party,

But Rule 31.5(a)(12) adds the requirement that the party requesting the replacement objected to the report on the grounds of lateness prior to the date the evaluator served the report. Previous panel decisions have held that a party may not wait until after an adverse report issues to raise an irregularity but must do so at the earliest opportunity.

In Fajardo v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1158 (writ den.), an Appeals Board panel adopted and incorporated a WCJ’s report which held that a party may only object to the untimeliness of a report prior to the receipt of the report. The WCJ in Fajardo stated that  “To allow the parties to review an unfavorable report and object for the sole reason of untimely service would wreak havoc in the system and would summarily endorse doctor shopping.”

In County of Sonoma v. Workers’ Comp. Appeals Bd. (Smith) (2008) 73 Cal.Comp.Cases 268 (writ den.), an Appeals Board panel affirmed the WCJ’s denial of a new QME panel due to the untimeliness of a QME’s initial report. The WCJ in Smith noted that Labor Code section 4062.5 was “designed to promote expeditious litigation so that injured workers may receive workers’ compensation benefits to which they are entitled in a timely manner,” and that ordering a new panel after the QME had served his report would be contrary to that goal.

It is well established that a party must object to an untimely QME report under section 4062.5 and Rule 38 prior to the service of the report. Here, applicant failed to object to Dr. Rubin’s report prior to the date it was served upon the parties.