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Applicant Not Entitled to Replacement QME Panel When QME is Not Available for Deposition Within 120 Days of Deposition Notice

GUTIERREZ vs. MOLYCORP MINERALS
(2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 3

Applicant claimed injury to his esophagus while employed by defendant as a mine operator.  The parties obtained a QME Panel and Dr. Bettencourt was the last remaining physician after the parties struck names from the Panel.

Dr. Bettencourt evaluated the applicant and issued two reports.  Following receipt of the reports, applicant’s attorney contacted the doctor’s office to schedule her deposition.  The deposition was set for December 5, 2016.  However, the doctor cancelled the deposition due to a personal emergency.

The next available deposition date was March 29, 2017, more than 120 days following the initial request for deposition dates.  The applicant’s attorney submitted a request for a replacement QME Panel and the Medical Unit deferred to the WCAB to determine if a replacement Panel was permitted.

The Workers’ Compensation Judge issued a Findings and Order that denied the request for the replacement Panel.

Applicant’s attorney filed a Petition for Reconsideration.  The Commissioners first noted that because the Findings and Order was not a final Order, removal was the appropriate remedy.  They dismissed the Petition for Reconsideration and treated it as a Petition for Removal.

They noted that Rule 31.5 provides for a replacement Panel under 16 circumstances.  These do not include the timeliness of the doctor’s deposition.

While Rule 35.5(f) requires a QME to make himself or herself available for deposition within 120 days of the notice of deposition, the failure to do so is not one of the enumerated circumstances for obtaining a replacement Panel.  Further, Dr. Bettencourt did make herself available within 120 days.  However, the deposition did not go forward due to an emergency.  There was no evidence that the doctor was trying to evade the deposition.

Finally, applicant failed to show any prejudice or irreparable harm if the QME is not replaced.  Under the circumstances, there was no good cause for a replacement Panel.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.