May 21, 2025 | Los Angeles, CA — MedLegalNews.com – The Workers’ Compensation Appeals Board (WCAB) has issued an en banc ruling in Vazquez v. Inocensio Renteria, clarifying that a party is not automatically entitled to a QME replacement panel if a Qualified Medical Evaluator (QME) cannot schedule an appointment within the deadlines set by California regulations.
Understanding QME Appointment Rules
California Code of Regulations (CCR) 31.3 sets the framework for scheduling appointments with a QME selected from a panel. Under CCR 31.3(e), if a party with the legal right to schedule an evaluation cannot get an appointment within 90 days, they may waive the right to a replacement to accept an appointment up to 120 days from the initial request. Either party may report a QME’s unavailability, and a replacement panel must issue if the QME can’t schedule an evaluation within 120 days—unless the parties waive this timeline.
Further, CCR 31.5(a)(2) allows the medical director to issue a replacement panel if the QME cannot schedule the exam within 90 days—or 120 days if the 90-day limit is waived.
Facts of the Vazquez Case
In Vazquez, a QME initially evaluated the applicant on May 21, 2021, later providing supplemental reports after additional record reviews. On July 29, 2024, the applicant requested a re-evaluation, but the next available date was December 2, 2024—127 days later.
On August 5, 2024, the defendant requested a replacement panel under CCR 31.3(e) and 31.5(a)(2), citing the delay beyond 120 days. The Division of Workers’ Compensation Medical Unit issued a replacement panel on September 12, 2024. However, the Workers’ Compensation Judge (WCJ) had to decide if this replacement was appropriate.
WCAB’s En Banc Decision on QME Replacement
The WCAB overturned the WCJ’s ruling, emphasizing:
- Only the WCAB has jurisdiction to determine the validity or appropriateness of a replacement panel.
- In represented cases, the WCAB exercises discretion to order a QME replacement for good cause—there is no automatic right.
- The Labor Code only explicitly grants statutory rights to replace a QME in cases of ex parte communication or failure to timely issue reports.
- The timelines in CCR 31.3 and 31.5 are important but do not conclusively dictate replacement eligibility, as doing so would infringe on the WCAB’s adjudicative authority.
The WCAB noted that the administrative director regulates QMEs and that unavailability could result in discipline or loss of appointment. However, the decision to replace a QME balances multiple factors.
Key Factors in Deciding on QME Replacement
When determining whether to order a QME replacement, the WCAB highlighted considerations including:
- The length of the delay caused by the QME’s unavailability.
- The prejudice caused by the delay compared to the prejudice of restarting the evaluation process.
- Efforts made to remedy the QME’s availability.
- Case-specific facts, including any waiver of objection by parties.
- The WCAB’s constitutional mandate to ensure justice is delivered quickly and fairly.
The WCAB remanded the case to the trial level for these factors to be weighed by the WCJ. This ruling applies prospectively.
Practical Implications of the Vazquez Ruling
This decision means that although CCR 31.3 sets deadlines for scheduling QME evaluations, a missed deadline doesn’t guarantee an automatic QME replacement. Instead, the WCAB holds discretion to order a replacement panel for good cause after weighing relevant factors.
For example:
- A short delay for a re-evaluation after multiple prior evaluations may not justify a replacement.
- Conversely, a long wait for an initial evaluation where a replacement QME can schedule sooner is more likely to be approved.
Parties may still request replacement panels under CCR 31.5(a)(2), but the WCAB retains the final say on whether to uphold or reject those panels based on case specifics.