Importance of a Timely Objection

by Alex Chechelnik (October 11, 2018)

One of the most litigated issues at the Workers’ Compensation Appeals Board is the right to request a replacement panel when a physician is unable to schedule within the 60-day timeframe.

The panel decision in Bogue v. County of Solano, 2018 Cal. Wrk. Comp., recently touched on this subject. The WCAB in Bogue, denying applicant’s Petition for Removal, affirmed the trial judge’s finding that a panel qualified medical evaluator’s inability to schedule an appointment for an applicant within 60 days of the applicant’s appointment request did not entitle the applicant to a replacement qualified medical evaluator.

The applicant, pursuant to her initial right to arrange a medical appointment under Labor Code § 4062.2(d), attempted to schedule an evaluation with the physician selected from a panel. When Defendant noticed that no appointment was made, they went ahead and scheduled the qualified medical evaluation outside of the 60-day timeframe. No objection from the applicant was made after the evaluation was scheduled.

The WCAB found that because the applicant did not timely inform defendant of her inability to arrange a medical appointment within 60 days of her request, the right to schedule a medical appointment switched to defendant. Thereafter, the applicant attended the medical appointment scheduled by defendant and retained her ability to conduct discovery, including the right to obtain a report from a primary treating physician and to depose the panel qualified medical evaluator if she wished to challenge his findings. The applicant failed to demonstrate the requisite prejudice or harm to justify removal.

The take away point reflected by the panel decision in Bogue is that, despite the fact that the panel qualified medical evaluator was unable to schedule an appointment within the 60-day time frame, applicant still got stuck with the doctor because her attorney did not inform defendant of the doctor’s unavailability within the ten days mandated by Labor Code Section 4062.2(d).

Without regard for peripheral details, the WCAB panel here is placing emphasis on the applicant’s duty to inform the defendant of the panel qualified medical evaluator’s unavailability over the doctor’s actual unavailability. The lesson here is that if the applicant’s attorney does not communicate an objection to the panel qualified medical evaluation within the ten-day time frame, defendant obtains the right to schedule the qualified medical evaluation regardless of when the particular physician may be available.

Alex Chechelnik is an associate attorney based out of Bradford & Barthel’s Fresno office. In addition to his workers’ compensation experience, Mr. Chechelnik previously worked with Civil Litigation matters. He can be reached at achechelnik@bradfordbarthel.com or (559) 442-3602

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