What Qualifies as a Request for a Medical Evaluation Pursuant to Labor Code 4060?

In disputed cases, parties often rush to request a panel QME in a desired specialty. Per Labor Code § 4062.2(b), when an employee is represented by an attorney seeking an evaluation under § 4060, 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. But what is a "request for a medical evaluation pursuant to Section 4060"?

Shortly after SB 863 became effective, the DWC issued a Newsline stating that for disputes over compensability under § 4060, a QME panel request must include a written objection that a compensability examination is required.[1] Practitioners generally understood this to mean that a party must issue a letter notifying the opposing party that a panel QME under § 4060 will be requested before actually requesting it.

In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638, however, the WCAB determined that notifying the opposing party that, per § 4060, a panel QME will be requested was not required in all cases. The WCAB found a request to be proper when the applicant simply waited until 10 days after the defense denied the case.

Bahena explained that SB 863 was intended to streamline the AME/QME process to eliminate unnecessary delays and friction in the system. It believed that the changes enacted by SB 863 to the process of obtaining a comprehensive medical evaluation for represented employees in denied injury cases were intended to bring that process more in line with the procedures for unrepresented employees. The WCAB added that once a denial letter is issued, if a medical evaluation is required to determine compensability, no purpose is served by holding up that process until one party sends a letter to the other to initiate it. The WCAB confirmed this interpretation in a subsequent case. (Lopez v. California Pizza Kitchen, 2016 Cal. Wrk. Comp. P.D. LEXIS 399.)

Since then, the issue of whether a delay letter may qualify as "a request for a medical evaluation pursuant to Section 4060" arose. 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. The WCJ analogized the situation to Bahena, and explained that although the matter involved a delay letter rather than a denial letter, the purposes for allowing a compensability examination in accordance with § 4060 were the same.

More recently, however, in Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ's decision that an applicant's request for a chiropractic panel pursuant to § 4060 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." The WCJ distinguished Bahena because that case involved a denial letter, not a delay letter, and the denial in Bahena included a fact sheet about the QME process and a form to be used for requesting a panel QME. In Rayo, the WCJ concluded that the prerequisites for requesting a panel had not taken place at the time the panel was requested.

Montoya and Rayo reached entirely different results on whether a delay letter could trigger the QME process. Although it is possible that the WCAB in both cases deferred to the WCJs finding that the petitioners had not established substantial prejudice or irreparable harm for the purposes of removal, more likely the WCAB was guided by the facts of each case.

In Bahena, it was specifically noted that a QME panel request form was enclosed with the denial. Similarly, in Montoya, the WCJ found that the defendant's delay letter indicated that a § 4060 evaluation would be needed to complete the investigation. California Code of Regulations Title 8 § 9812(g)(3) provides that if a defendant notifies an employee that it is requesting a comprehensive medical legal evaluation, the delay notice must be accompanied by a QME request form. So in those cases, the WCAB allowed a denial letter or a delay letter to trigger the QME process because they were accompanied by the form. But in Rayo, the WCJ found nothing in the delay letter that reasonably could be described as "a request for a medical evaluation pursuant to section 4060."

The administrative regulations contemplate that providing a QME panel request form will trigger the process for obtaining a QME under § 4060. Per CCR Title 8 § 9812(g)(3) and § 9812(i)(1)(B), if an employee is provided with a QME request form in a delay or denial letter, respectively, the employee must be given the same notification in both letters. The letters must state, "If you do not submit the form within 10 days, we will have the right to submit the form."

So, although the cases have focused mostly on whether a denial letter or a delay letter qualifies as "a mailing of a request for a medical evaluation pursuant to Section 4060," it might be that neither alone qualifies. It might be that a denial letter or delay letter may trigger the QME process under § 4060 only if accompanied by QME panel request form.