A Judge at the Oakland WCAB has denied an applicant’s request for an Order instructing the Medical Unit to issue a new QME panel, where the QME’s requested supplemental report was not issued within the 60 day time limit set forth in 8 CCR 38(h).
The Judge noted that although 8 CCR 38(h) requires that a supplemental QME report issue within 60 days of the written request from either party, there is nothing in the Labor Code or the regulations which provides that the remedy for a late supplemental report is the issuance of a new QME panel. The case is Mayberry v. SFUSD (ADJ8541542).
The case involves an alleged pysche injury. The panel QME issued a timely report within 30 days of the initial examination of the applicant. In the report the doctor asked for additional medical records, which were sent along with a request that the doctor issue a supplemental report.
It appears that the written request may not have been received by the doctor, so a follow-up letter with the records was sent which was received and quickly responded to by the QME. In the supplemental report, the QME found no injury AOE/COE.
Applicant’s attorney objected to the QME because the supplemental report was not issued within 60 days of the initial request. After a trial, the Judge issued a decision denying the request, noting that there was no apparent remedy in the law for a late supplemental QME report (and deferred to the Administrative Director the job of fashioning a remedy).
It was also fairly transparent that applicant’s attorney was attempting to “doctor shop,” being unsatisfied with the QME’s finding of no injury AOE/COE.