Amended Regulations: PQME Panel Requests

New regulations for requesting PQME panels and some thoughts about handling.

AmendedRegulationsPQMERequestTitle

AmendedRegulationsPQMERequest

As you probably already know, the DWC has issued amended regulations which change the way we will request a PQME in represented cases.i The DWC Medical Unit will neither process nor accept any hard copy panel request with a postmark after 9/3/2015, yet the new on line program starts 10/1/2015. So, you will have a “waiting window period.”

If you visit the DWC website, they have a question and answer piece and a demonstration video, both of which we highly recommend.ii

THE REGULATIONS

Please keep in mind that the “first party to request” is the party who gets to select the specialty of the PQME and you know many applicant attorneys want a chiropractor. Before we get to that, remember these points about “time” and counting “days”

• Any time a document is mailed inside of California and the “mailing” is the trigger for the start of the day clock, then per CCP 1013(a), if the recipient is in California, the service, while still complete on the date it was mailed, extends the response time from the recipient by five (5) calendar days. And, if the recipient is in another state, the time extends to 10 calendar days

• A document which is “mailed” by Express Mail (CCP 1013(c)), facsimile transmission (CCP 1013(e) or electronic service (CCP 1013(g) extends the response time by two (2) court days

• In the En Banc decision in Meselle v. Pitco, the WCAB held that CCP 1013(a) does apply to notice of requests for a PQME and the “triggering event” is the notice by the party so the time does extend by five calendar daysiii

• Under CCP 12, day one (of the 10 day notice to request PQME under 4062.2) is always the next day after the mailing. So, if you mail your notice of intention to obtain a PQME under Lab C 4060 or you make your objection to the PTP under 4061/4062 on 9/15/2015, “day one” will always be the next day or 9/16/2015 for purpose of day counting. But, it also includes the last day, extended by the mailing time

• If the last day falls on a Saturday, Sunday or court holiday, then you move to the next court day

• Please keep in mind that Lab C 4062.2(b) requires the notice for a PQME to be “mailed,” which would seem to rule out personal service

REQUESTS FOR PANELS: AND DAY COUNTING

• Requests can be made 24 hours a day

• Requests made on a Saturday, Sunday or a holiday are deemed to have been made at 8:00 a.m. on the next business day

• Requests made Monday-Friday after 5:00 p.m. and before 12:00 a.m. are deemed to have been made at 8:00 a.m. on the next business day

• Requests made Monday-Friday between 12:00 a.m. and 8:00 a.m. are deemed to be made on that same business day

10 OR 15 DAYS WITHIN WHICH TO STRIKE: Prior to this new on line procedure, there is some authority for the proposition that you only have 10 days within which to make your strike once the panel is assigned. This was discussed in Messelle. Don’t assume you actually have 15 days to strikeiv but for represented cases after 10/1/2015, this clearly changes. Under the new regulations, the requesting party is required to serve opposing party by mail and then 10 days after service of the panel, the strike may take place. Well, it is clear the “service” is the trigger, so yes, we would have 5 more days to strike unless we were personally served with the panel and there is no apparent prohibition on this

Remember, the day counting is important. This is important because not only about timing the request against the 10 day notice of intent to request but also knowing when the actual panel request takes place. If they request too soon, then the validity of the request is under the WCAB, not the Ad. Director. The rules governing this are under Rule 30, sub (b)(2). The “race to the DWC Medical Unit” will be determined by time. If we make a request on 9/5/2015, a weekday, at 4:59 p.m. then the request for the PQME is deemed that same business day, or 9/5/2015. But, if applicant’s counsel waits until 5:01 p.m., that same date, their request comes the next business day or 9/6/2015, so ours is first in time. Any week day request from 12:00 a.m. and 8:00 a.m. will be deemed made that same business day

• Time frames for requesting QME and for scheduling an appointment will be tolled (“frozen”) if the Medical Director is requesting information from the parties

• DISPUTES: Validity of the request goes to the WCAB. But, disputes over specialty of the PQME remain with the Administrative Director, subject to appeal to the WCAB

SOME THOUGHTS

• We expect that some applicant attorneys might try and serve you notice of their intent to request a PQME either by electronic means, fax or by express mail, in which case there is a 12 day time frame so they could go on line on the 13 day and request a PQME

• You should also expect they will make their requests before 5:00 p.m. on the first day they can request a PQME, so that the request day starts the 10 day process and day one is the next day

WHEN YOU GET THE PANEL? ILLUSTRATION: When we receive a QME, step number one is to log in the response strike date; the next thing we do is make sure that none of the doctors are either the PTP, were the PTP or are on in the same group practice or at the same address. Assuming that clears, then we look for the obvious “strike” based upon our knowledge of the doctor’s reputation. But, we are always mindful that some of the most liberal doctors are some of the most conservative PQME’s, so caution here before acting. We also check: (1) The DWC QME Discipline List; (2) Medical Board or Board of Psychology, which can be very interesting; (3) Lexis/Nexus for reported decisions, including panel, which include the doctors’ name. That is sometimes one of the best sorting devices; (4) Our internal doctor lists and notes; (5) Our internal doctor deposition library, which is one of the best ways to know about a doctor; (6) The internet; (7) If everything else fails, I like to count the number of office locations and for us, when the number is over ten, that is often a “red flag”

PRO AND CON’S OF USING A PQME? Unless you have a good, if not compelling reason to use an AME, in most cases, the default decision to use a PQME, is probably the right one.

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