Abel Vazquez was employed as a seasonal agricultural worker by Inocensio Renteria on March 17, 2017, when he sustained an industrial injury to his left ankle and left calf, and claims to have sustained injury to his left lower extremity, psyche, and in the form of hypertension, diabetes, and hyperlipidemia.

Ira Fishman, M.D., was selected as a QME to evaluate the compensability of applicant’s internal complaints, and issued two reports. Dr. Fishman initially evaluated applicant on May 21, 2021. On May 31, 2022, he issued a supplemental report following his review of additional records.

On July 29, 2024, applicant requested a re-evaluation with Dr. Fishman.The next available evaluation date was for December 2, 2024, which was 127 days later.

On August 5, 2024, defendant requested a replacement panel pursuant to AD Rules 31.3(e) and 31.5(a)(2), because the re-evaluation appointment with Dr. Fishman was scheduled more than 120 days from the date of applicant’s request.

On August 15, 2024, applicant objected to the request for a replacement panel, arguing that the time limits only applied to initial evaluations and not to subsequent evaluations. Defendant responded to applicant’s letter by citing AD Rule 31.3(f) and arguing that the timeframes for QME appointments apply to both initial and subsequent evaluations.

The Division of Workers’ Compensation (DWC) Medical Unit issued a replacement panel on September 12, 2024. Applicant objected, and the issue of whether a replacement panel was appropriate was set for trial. The WCJ found that defendant was entitled to a replacement panel due to the QME’s inability to set an appointment within 120 days.

The WCAB sitting en banc (Lab. Code, § 115.) granted applicant’s petition for reconsideration in the case of Vazquez v Inocensio Renteria -ADJ11017003 90 Cal.Comp.Case ___ (May, 2025). It rescinded the March 11, 2025 F&O and return the matter to the trial level for further proceedings.

In doing so it held that:

1. Only the Appeals Board has jurisdiction to determine whether a replacement panel is valid or otherwise appropriate.
2. In a represented case, where a QME does not timely establish availability to set an appointment pursuant to AD Rule 31.3, a WCJ or the Appeals Board has discretion to order a replacement QME for good cause. The WCJ or the Appeals Board may consider the following:
a. The length of delay caused by the QME’s unavailability.
b. The amount of prejudice caused by the delay in availability versus the amount of prejudice caused by restarting the QME process.
c. What efforts, if any, have been made to remedy the QME’s availability.
d. Case specific factual reasons that justify replacing or keeping the current QME, including whether a party may have waived its objection.
e. The Appeals Board’s constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4.)

As explained in the decision, “when sections 4062.5 and 139.2(j)(1) are read together, a party’s statutory right to seek replacement of a QME in represented cases arises when the QME fails to timely issue a report following a medical evaluation. In represented cases, the determination of whether a QME should be replaced due to unavailability to set an evaluation is within the discretionary power of the Appeals Board, and a QME may be replaced where a party demonstrates good cause for the replacement.”

Application of this decision is prospective only.