Gus Kowal claimed two injuries while employed as a roofer by the County of Los Angeles. But, on August 5, 2019, the employer sent to applicant a Notice of Denial of Claim for Workers’ Compensation Benefit citing “02/28/2012” as the “DOI.”

In response, on October 11, 2019, Kowal requested and obtained a QME panel in orthopedic surgery for the 2012 cumulative trauma claim. On October 16, 2019, the employer sent Kowal a letter objecting to the CT panel, and also striking Dr. Robert Kolesnik from the panel as a precaution.

On October 29, 2019, Kowal sent a fax to defendant with his strike of Dr. Hananni from the panel. About one year later, Kowal sent a letter on October 8, 2020 to the employer advising that an appointment had been scheduled for December 8, 2020 with the same doctor he struck from the panel, Dr. Hananni, to conduct the QME evaluation.

The employer then sent him a letter objecting to the evaluation with Dr. Hananni since he had previously struck this physician from the panel.

The matter proceeded to trial on the issue: “Can applicant set a panel exam with a doctor they untimely struck when, after defendants timely struck, the remaining doctor was not able to see applicant within the statutory time period?” The WCJ concluded that Kowal could not.  Reconsideration was granted, and the WCAB panel allowed him to proceed with the QME evaluation in the case of Kowal v County of Los Angeles, ADJ12372302 (May 2022).

The QME panel in the CT case issued on October 11, 2019. The employer made a timely strike from the panel on October 16, 2019. However, Kowal sent a letter striking Dr. Hannani from the panel on October 29, 2019. Even accounting for additional time for mailing, applicant’s strike from the panel was untimely and invalid. Thus, both remaining doctors on the panel remained viable choices as the QME.

Rule 31.3 provides the procedures for parties to schedule an appointment with the QME. A represented worker has the right to schedule the appointment for the first 10 days. After that, either party may schedule an appointment with the QME.

In an en banc decision, the Appeals Board noted in a footnote that if the employee fails to schedule an appointment with the QME within ten business days, “the clock stops running and either party has an indefinite time to schedule the appointment.” (Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336, 1348, fn. 11.

Therefore, after that initial 10-day period, the employee may still schedule the appointment, or the appointment may be scheduled by the claims administrator or the claims administrator’s attorney pursuant to AD Rule 31.3(d).

The WCAB noted that “this is a unique set of facts since applicant scheduled an appointment with the physician he attempted to strike from the panel. His strike was untimely per the discussion above. Both parties had the right to schedule an appointment with the two remaining physicians on the panel and applicant chose to exercise that right by accepting an appointment with Dr. Hannani within 90 days of his appointment request.”

Therefore, the WCAB panel rescinded the F&O and issued a new decision finding that Kowal was permitted to schedule an examination with the doctor that he untimely struck. The parties were ordered to proceed with using the existing panel.