Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."
LC 4062.2(d) states, "The represented employee shall be responsible for arranging the appointment for the examination, but upon his or her failure to inform the employer of the appointment within 10 days after the medical evaluator has been selected, the employer may arrange the appointment and notify the employee of the arrangements." So, after a QME has been selected, the employee has the initial right to schedule an evaluation, and the employer has the right to do so only if the employee fails to schedule one within 10 days.
Previously, the Workers' Compensation Appeals Board held that an applicant, who failed to timely strike a doctor from a panel, retained the right to schedule an appointment with a remaining doctor when the defendant did not notify her that it was setting the appointment with a different doctor off the panel. In Gamez v. Full Steam Staffing, 2018 Cal. Wrk. Comp. P.D. LEXIS 282, a QME panel was requested Oct. 5, 2017. The defendant timely issued a strike, but the applicant did not. On Oct. 31, 2017, the applicant's attorney scheduled an appointment with Dr. Lin from the panel, and on the same day, the defendant wrote that it was also striking Dr. Lin and setting an appointment with the remaining doctor, Dr. Roth. The WCAB upheld the WCJ's decision finding that when the applicant failed to set the appointment within 10 days, either party could do so, and because the first appointment was set with Dr. Lin, he was the QME.
More recently, in Scribner v. Rosewood Miramar Hotel, 2025 Cal. Wrk. Comp. P.D. LEXIS 13, the board held that the defendant had the right to select and schedule an appointment with a QME when the applicant failed to timely issue a strike. In that case, a panel was issued and served Aug. 8, 2024. The defendant exercised a strike Aug. 19, 2024. On Aug. 26, 2024, the applicant's attorney struck Dr. Nguyen. On the same day, the defendant chose Dr. Nguyen as the QME, but no appointment was set. The applicant's attorney first set a QME appointment with Dr. Ovadia Sept. 26, 2024.
Nevertheless, the appeals board held that the defendant had the right to select Dr. Nguyen as the QME. It explained that under LC 4062.2(c), only the party "other" than the "party [that] fails to exercise the right to strike a name from the panel" may "select any physician who remains on the panel to serve as the medical evaluator." It found that the last day to strike was Aug. 23, 2024, making the applicant's strike untimely. It added that LC 4062.2(d) assigns the responsibility of making an appointment with the evaluator to the applicant, without authorizing him or her to select the evaluator from those remaining on the panel, and allows a defendant to make an appointment if the applicant fails to do so within 10 days "after the medical evaluator has been selected." So the appeals board concluded that because the applicant's strike of Dr. Nguyen was untimely, he remained on the panel, and the defendant was entitled to select him as a QME Aug. 26, 2024.
Although these cases are similar, in Gamez, the applicant's attorney scheduled an appointment with Dr. Lin, and on the same day, the defendant wrote that it was striking him. But in Scribner, the applicant's attorney simply struck Dr. Nguyen on the same day the defendant selected Dr. Nguyen. So, Gamez could be interpreted as a case in which the applicant exercised her right to schedule an evaluation under LC 4062.2(d) before the defendant selected the QME, and Scribner could be interpreted as a case in which the applicant failed to timely exercise a strike per LC 4062.2(c), and the defendant selected the QME before the applicant scheduled an evaluation.
The lesson from these cases is that a party's failure to timely issue a strike does not provide the other party with an unfettered right to select a remaining doctor to serve as the QME. LC 4062.2(c) states that "the other party may select any physician who remains on the panel to serve as the medical evaluator" (emphasis added). That right should be exercised proactively. So if a party fails to timely exercise a strike from a panel, the party who struck timely should notify the party who failed to do so of its selection after the period to strike has expired.
For further discussion on the process for selecting QMEs under LC 4062.2, see "Sullivan on Comp" Section 14.29 Medical-Legal Process — Represented Employee.