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WCAB EN BANC Holds Replacement Panel Not Automatic for Failure to Timely Schedule an Evaluation

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a gavel on a table of a workers' compensation adjuster

by Sure Log

May 20th, 2025

California Code of Regulations 31.3 establishes the rules for scheduling appointments with a qualified medical evaluator (QME) selected from a panel. CCR 31.3(e) establishes when a QME must be available for an appointment and states, “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.” CCR 31.3(e) also allows either party to report the QME’s unavailability and requires a replacement panel to issue “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” unless the parties waive the time limit for scheduling an initial or subsequent evaluation. CCR 31.3(f) applies the provisions in CCR 31.3(e) to both comprehensive medical-legal evaluation by a QME and follow-up comprehensive medical-legal evaluations by a QME.

CCR 31.5 establishes grounds on which a QME panel may be replaced, and CCR 31.5(a)(2) allows the medical director to issue a replacement panel when “a QME on the panel issued cannot schedule an examination for the employee within ninety (90) days of the initial request for an appointment, or if the 90 day scheduling limit has been waived pursuant to section 31.3(e) of Title 8 of the California Code of Regulations, the QME cannot schedule the examination within one-hundred and twenty (120) days of the date of the initial request for an appointment.”

On May 19, 2025, in Vazquez v. Inocensio Renteria, the WCAB issued an en banc decision holding that a party is not automatically entitled to a replacement panel if a QME cannot schedule an appointment. Instead, it held that:

  1. Only the WCAB has jurisdiction to determine whether a replacement panel is valid or otherwise appropriate.
  2. In a represented case in which a QME does not timely establish availability to set an appointment pursuant to CCR 31.3, the WCAB has discretion to order a replacement QME for good cause.

FACTS OF THE CASE

In Vazquez, a QME was selected to evaluate an applicant’s internal complaints. The QME initially evaluated the applicant May 21, 2021, and later issued a supplemental report following review of additional records.

On July 29, 2024, the applicant requested a re-evaluation with the QME, but the next available evaluation date was Dec. 2, 2024, which was 127 days later. On Aug. 5, 2024, the defendant requested a replacement panel pursuant to CCR 31.3(e) and CCR 31.5(a)(2) because the QME’s re-evaluation was scheduled more than 120 days from the date of the applicant’s request.

The Division of Workers’ Compensation (DWC) Medical Unit issued a replacement panel Sept. 12, 2024. The matter proceeded to trial on the issue of whether a replacement panel was appropriate, and the WCJ found that the defendant was entitled to a replacement panel due to the QME’s inability to set an appointment within 120 days.

WCAB’S DECISION

The WCAB rescinded the WCJ’s decision. It explained that only two provisions in the Labor Code expressly grant parties the statutory right to replace a QME. The first is an ex parte communication under LC 4062.3(f)(g). The second is when a QME fails to timely issue a report following a medical evaluation under LC 4062.5 and LC 139.2(j)(1). It also found that LC 139.2(j)(1)(C) requires the administrative director to develop time frames governing the availability of QMEs for unrepresented employees, but the current case involved a represented employee. So, the WCAB concluded that absent a statute compelling such a result, whether a QME should be replaced due to unavailability falls within the WCAB’s broad equitable powers.

The WCAB explained that although CCR 31.3 and CCR 31.5 are valid, they cannot be interpreted as finally determining whether a replacement panel is appropriate because such an interpretation would usurp the adjudicative power of the WCAB to determine whether a QME should be replaced. The WCAB noted that it was not suggesting that the availability timelines themselves are invalid or should not be followed by QMEs, because the administrative director is empowered to appoint and appropriately regulate the conduct of QMEs. A QME’s unavailability could result in discipline, including the loss of his or her appointment.

The WCAB added that the dates set by the administrative director are important and should be followed, and might even be persuasive as to whether the length of delay is inappropriate. It held that 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 might have waived its objection;
  5. the WCAB’s constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., Art. XIV, § 4.)

The WCAB returned the matter to trial level for the WCJ to balance those factors in the first instance. It also held that its decision would apply prospectively, and prior decisions that issued were not inherently incorrect.

ANALYSIS

So, although CCR 31.3(e) establishes the time limits for a QME to be available for an appointment, the failure to set one will not automatically allow a party to obtain a replacement QME. Instead, the WCAB has discretion to order a replacement panel for cause. Although Vazquez specifically dealt with a QME’s availability for a re-evaluation, the holding would also apply to an initial evaluation as well, as the WCAB held that the Labor Code does not expressly compel a replacement of a QME who is not timely available to set an appointment.

Vazquez does not preclude a party from requesting a replacement panel with the Medical Unit pursuant to CCR 31.5(a)(2) when a QME is not timely available for an appointment under CCR 31.3(e). The WCAB recognized that the administrative rules were still valid. But if a replacement panel is issued under those regulations, the WCAB has jurisdiction to determine whether the replacement panel is valid or whether the parties must continue to be evaluated by the original QME after considering the factors outlined in the decision.

A WCJ has discretion in how to apply and weigh the factors enumerated in Vazquez. But a judge is unlikely to replace a QME based on a failure to comply with CCR 31.3(e) if he or she has evaluated the applicant multiple times and issued multiple reports, and there is only a short delay in scheduling a re-evaluation. In contrast, if a QME cannot schedule an initial evaluation until long after the 120-day period, and a replacement QME can schedule one quickly, the replacement panel probably will be deemed valid.

 

About the Author


a man in a suit and tieSure S. Log is a seasoned specialist in workers’ compensation defense and related labor law, providing expert analysis on litigation and settlement strategies. His expertise includes conducting thorough legal research, reviewing case records to streamline discovery, and drafting comprehensive trial and appellate briefs. 

A thought leader in the field, Mr. Log regularly develops seminar materials and co-authors influential white papers on critical workers’ compensation topics. His publications include “An Analysis of the New Regulations Regarding Disputes Over Medical-Legal Expense and Medical Treatment,” “Special Report: A First Look at SB 863” detailing the 2012 reforms to California’s workers’ compensation system, and “SB 863: Five Years Later.”

Mr. Log is also the co-author of Sullivan on Comp, a 16-chapter definitive analysis of California workers’ compensation law, which is updated monthly to ensure ongoing relevance and accuracy for industry professionals.

 

 

 

 

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