Do you know what happens in a workers’ compensation case when an applicant and their employer simultaneously strike the same physician from a PQME list? Do you know what happens when a party fails make any strike? The answers to these questions are not contained in either the Labor Code or the Code of Regulations, but instead, are found in case law decisions.
In the recent decision in Kowal v. County of Los Angeles (2022 Cal. Wrk. Comp. P.D. LEXIS 109) the Board provided guidance on how parties are to proceed when only one QME is struck from a panel. According to the Board’s decision, the party that ultimately schedules the QME appointment may select either of the two remaining physicians as the QME. However, Labor Code 4062.2(d) grants applicant the exclusive right to proceed first by allowing applicant 10 days to schedule an appointment. Afterwards, it becomes a race, where either side may select the QME and schedule the examination.
To further explain the Kowal decision here are two scenarios for consideration:
Scenario 1: The employer strikes a physician from the PQME list, but applicant fails to do so. When the time to strike expires, the applicant has 10 days to schedule an appointment with either of two remaining QMEs on the list. Thus, applicant is given a second chance and may select the QME. Should applicant fail to timely act within 10 days, the employer may select the QME and schedule the appointment.
Scenario 2: This time the applicant strikes a physician from the PQME list, but the employer fails to do so. When the time to strike expires, the applicant has 10 days to schedule an appointment with either of two remaining QMEs. Should applicant fail to timely act within 10 days, the employer may select the QME and schedule the appointment. Thus, the employer is given a second chance even though they failed to strike.
Although seldom encountered we cannot help but ask, “What happens should both sides fail to strike?” Although not directly addressed in the Kowal decision, the Board did imply that the party which takes the initiative to schedule the QME appointment may select any of the 3 physicians on the panel list as the QME pursuant to the procedures described in the above scenarios.
Relative to our opening questions above, the Kowal court also did not provide guidance on what happens when the same QME is struck by both sides. In hedge of that possibility, we often see both applicant and defense attorneys issuing a “conditional” strike by using this language: “We strike Dr. X but in the event Dr. X is struck by both parties, we hereby strike Dr. Y.” We at F&B are unaware of any case or statutory law granting a party the right to issue a conditional back-up strike. Instead, it appears that the parties are limited to the procedures outlined in the Kowal decision.