Update on the Panel Strike Process
SB863 made several changes to the QME process. First and foremost, the policy of offering AMEs before requesting a QME is no longer required. Rather, the parties must make a written objection before requesting a panel. If a panel is requested pursuant to Labor Code 4061 or 4062, an objection must be lodged against the primary treating report. The objection must include the date and name of the doctor for whom you are objecting. If a panel is request pursuant to Labor Code section 4060, a written notice that a compensability examination is necessary to evaluate the claim must issue to the applicant. Once the objection to the PTP or the compensability notice is issued, the parties can request a panel list of QMEs. Of course, the parties still must wait until day 16 before making the request. The parties must wait 10 days plus 5 additional days for mailing before proceeding with the request.
Most of us are pretty familiar with the request process. However SB863 and recent case law has amended the panel QME strike process. Previously, the parties had essentially 13 days to issue a panel strike from the date the panel was assigned. There was a 10 day waiting period to determine if the parties could agree on a QME from the panel. If not, then the parties had 3 days to issue a strike. There was no additional time provided for mailing. Therefore the panel strike had to occur within 13 days of panel assignment.
SB863 removed the 10 day waiting period to determine if the parties could agree on a QME. Rather, the language of Labor Code sectoin 4062.2 only requires the parties issue their strike wiithin 10 days of assignment of the panel by the administrative director. The trouble however is that many times the panel list is received several days after the panel is “assigned” by the administrateive director making it difficult to comply with the strike time period.
However in the recent case of Razo v. Las Posas Country Club (ADJ8381652) dated February 7, 2014, the 5 day waiting period for mailing has been added to the time to strike a panel QME. The WCAB applied the reasoning of Messle, which applied the 5 day waiting period to panel requests, to the process for issuing a strike to the panel list. (Messle v. Pitco Foods, (2011) 76 Cal.Comp.Cases 956). Again, this is 15 days from the date the panel was assigned, not the date in which you received the panel list.
Therefore, when you receive a panel list of QMEs, review the assignment date on top. You have 15 days from the assignment date to issue your strike.