On May 19, 2025, the Appeals Board issued an en banc decision in Vazquez v. Inocensio Renteria/Zenith Ins. Co., rescinding a March 11, 2025, Findings and Order granting defendant’s request for a replacement panel. The Workers’ Compensation Judge (WCJ) issued an order replacing the Panel Qualified Medical Evaluator, finding the evaluator was considered “unavailable” under the California Code of Regulations, Title 8, § § 31.3 and 31.5, based on his inability to schedule a re-evaluation within 120 days.

Applicant filed a Petition for Removal, which the Appeals Board treated as a Petition for Reconsideration, arguing the 120-day time limit set forth in § 31.3 should not apply for re-evaluations, and an evaluator’s inability to schedule a re-evaluation within that time limit does not constitute the evaluator as unavailable for the purpose of obtaining a replacement panel under § 31.5.

• 31.3(e) provides that

If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party’s initial request for an appointment. When the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party’s initial request for an appointment, either party may report the unavailability of the QME and the Medical Director shall issue a replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations upon request, unless both parties agree in writing to waive the one-hundred-twenty (120) day time limit for scheduling the initial or any subsequent evaluation.

Notably, defendants asserted that § 31.3(f) applied, which provides,

(f) The provisions of subdivision (e) of this regulation apply to both requests for any Comprehensive Medical-Legal Evaluation by a QME and requests for Follow Up Comprehensive Medical-Legal Evaluations by a QME.

On reconsideration, the Appeals Board found that, “[i]n 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 Board addressed the two provisions of the Labor Code that provide a statutory right to a replacement panel – ex parte communication and failure to timely complete a formal medical evaluation under sections 4062.5 and 139.2(j)(1).

Labor Code § 4062.5 provides that, [i]f a qualified medical evaluator selected from a panel fails to complete the formal medical evaluation within the timeframes established by the administrative director pursuant to paragraph (1) of subdivision (j) of Section 139.2, a new evaluation may be obtained upon the request of either party, as provided in Sections 4062.1 or 4062.2.

Labor Code § 139.2(j)(1) provides that, [a]fter public hearing pursuant to Section 5307.3, the administrative director shall adopt regulations concerning the following issues:

• (A) Standards governing the timeframes within which medical evaluations shall be prepared and submitted by agreed and qualified medical evaluators. Except as provided in this subdivision, the timeframe for initial medical evaluations to be prepared and submitted shall be no more than 30 days after the evaluator has seen the employee or otherwise commenced the medical evaluation procedure. The administrative director shall develop regulations governing the provision of extensions of the 30-day period in both of the following cases:

(i) When the evaluator has not received test results or consulting physician’s evaluations in time to meet the 30-day deadline.

(ii) To extend the 30-day period by not more than 15 days when the failure to meet the 30-day deadline was for good cause.

(B) For purposes of subparagraph (A), “good cause” means any of the following:

(i) Medical emergencies of the evaluator or evaluator’s family.

(ii) Death in the evaluator’s family.

(iii) Natural disasters or other community catastrophes that interrupt the operation of the evaluator’s business.

(C) The administrative director shall develop timeframes governing availability of qualified medical evaluators for unrepresented employees under Section 4062.1. These timeframes shall give the employee the right to the addition of a new evaluator to his or her panel, selected at random, for each evaluator not available to see the employee within a specified period of time, but shall also permit the employee to waive this right for a specified period of time thereafter.

The Appeals Board concluded the term “medical evaluation” under the plain reading of § 139.2(j)(1) does not refer to the scheduling or availability of the PQME to set an appointment. The Appeals Board found that subsection A outlines the timeframes for evaluations to be prepared and submitted after the evaluation has been conducted. The Board went on to state,

“The section clearly refers to the report that is generated after the evaluation has occurred. Furthermore, when comparing subsection (A) with subsection (C), it becomes clear that subsection (A) does not cover the availability of the QME to set an appointment as that expressed language exists in subsection (C), but is absent from subsection (A). Subsection (C) expressly refers to rules governing the availability of QMEs, and expressly gives the right to strike an unavailable evaluator to an unrepresented employee” (emphasis in original).

In reviewing § 139.2(j)(1) with § 4062.5, the Board held that the term “formal medical evaluation” under § 4062.5 actually refers to the report prepared after an in-person evaluation. As a result of this interpretation, the Board ultimately indicated “a party may seek to replace a QME under section 4062.5 where an evaluation takes place and the report prepared from that evaluation is untimely served.”

The Appeals Board declared that “while the rules are valid, § § 31.3 and 31.5 cannot be interpreted as finally determining whether a replacement panel is appropriate because such an interpretation would usurp the adjudicative power of the Appeals Board to determine whether a QME should be replaced.” (Labor Code § 111, emphasis added.)

In making the distinction between reporting and scheduling the evaluation, the Board ultimately agreed with Applicant and adapted the factors set forth in Corrado v. Aquafine Corp. (June 24, 2016, ADJ9150447, ADJ9150446) [2016 Cal.Wrk.Comp. P.D. LEXIS 318], rescinding the March 11, 2025, Findings and Order and remanding the matter back to the WCJ’s discretion to address whether good cause for a replacement panel. In remanding the matter back to the trial court, the Appeals Board directed the WCJ to consider the balancing test set forth under Corrado, which requires,

In a represented case, the determination of whether a QME should be replaced due to unavailability requires the balancing of multiple factors, which include:

1. The length of delay caused by the QME’s unavailability.
2. The amount of prejudice caused by the delay in availability versus the amount of prejudice caused by restarting the QME process.
3. What efforts, if any, have been made to remedy the QME’s availability.
4. Case specific factual reasons that justify replacing or keeping the current QME, including whether a party may have waived its objection.
5. 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).

In limiting its interpretation prospectively, the Appeals Board stated that the “timelines suggested in the regulations may be considered by the WCJ or the Appeals Board in determining whether a replacement panel is appropriate, and thus, prior orders that issued pursuant to the regulation are not inherently incorrect.” What this means is the Appeals Board’s interpretation in this case does not apply retroactively to undo replacement panel orders occurring prior to this decision.

Ultimately, the decision will require parties facing this issue to provide good cause for a replacement panel under the balancing test of Corrado. The WCJ will conduct the balancing test and have discretion in determining whether to order a replacement panel.