Per Labor Code 4062.2(b), when an employee is represented by an attorney, a QME panel may be requested, “No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060….” The mailbox rule extends this time period for five calendar days if the physical address of the party being served with the first written proposal is within California. The statute, however, does not clarify what qualifies as a “request for a medical evaluation pursuant to Section 4060.”
Commonly, a party will issue a letter giving notice that it intends to request a QME panel under LC 4060 prior to requesting one. The appeals board has long recognized that a denial letter could be used to trigger the QME process for an evaluation under § 4060. (Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638.) But case law conflicted regarding whether a delay letter could also be used.
In Montoya v. Burger Buddies, LLC dba Carl’s Jr. Restaurant, 2016 Cal. Wrk. Comp. P.D. LEXIS 242, the WCAB upheld a WCJ’s decision allowing an applicant to request a QME panel by submitting the defendant’s delay letter with his request. In Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, however, the WCAB upheld a WCJ’s decision that an applicant’s request for a chiropractic panel was premature and invalid because a delay letter did not qualify as a “mailing of a request for a medical evaluation pursuant to Section 4060.”1
So there was no clear guidance on whether a delay letter could be used to trigger a QME panel under § 4060. Recently, however, the WCAB revisited the issue and decided that a delay letter could be used.
In Chavarria v. Crews of California, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 534, a defendant sent an applicant a notice on July 30, 2019 regarding delay of workers’ compensation benefits. Sixteen days later, on Aug. 15, 2019, the applicant served a copy of a QME panel pursuant to § 4060 that was obtained using the delay letter. The defendant argued that the panel was defective and premature, because it had not yet decided whether to accept or deny the claim.
The WCAB granted removal of a WCJ’s decision striking the panel, holding that it was properly obtained. The WCAB stated that “the term ‘a request for medical evaluation’ as used in section 4062.2(b), should be broadly interpreted.” It believed that the combination of an applicant filing a claim form and an employer notifying him or her that further discovery is needed is sufficient to meet the requirement. It added that there was a dispute because the claim was not accepted, and requiring parties to wait before conducting permissible discovery would violate the public policy favoring the expeditious resolution of workers’ compensation claims.
In a concurring opinion, WCAB Chair Katherine Zalewski wrote that she disagreed with Rayo, because it was inconsistent with § 4060 and § 4062.2. Notably, Chair Zalewski was on the panel that upheld the WCJ’s decision in Rayo. So her position on the issue has changed, and she has indicated that Rayo should not be followed.
Accordingly, although Chavarria is just a panel decision that is not binding on WCJs or WCAB panels, it strongly indicates how the issue will be decided moving forward. The WCAB probably is taking the position that a QME panel under LC 4060 and LC 4062.2 may be obtained using delay letters.
At the very least, it provides additional authority for parties attempting to obtain panels using delay letters. Because the panel specialty often is critical in deciding the value of a claim, parties seeking to win the race for a QME specialty under § 4060 should look first to see whether a delay letter has been issued.
- This issue and these cases were discussed in the article, What Qualifies as a Request for a Medical Evaluation Pursuant to Labor Code 4060?, posted April 17, 2018 (https://app.sullivanoncomp.com/commentaries/2018-04-request-for-a-medical-evaluation-pursuant-to-section-4060).