There are several statutes applicable to the time frame within which a PQME must issue a report. Title 8, California Code of Regulations 38(a) states:

"The timeframe for an initial or a follow-up comprehensive medical legal evaluation report to be prepared and submitted shall not exceed thirty (30) days after the QME, agreed panel QME or AME has seen the employee or otherwise commenced, the comprehensive medical legal evaluation procedure.  If an evaluator fails to prepare and serve the initial or follow up comprehensive medical legal evaluation report within thirty (30) days and the evaluator has failed to obtain approval from the medical director for an extension of time pursuant to this section, the employee or the employer may request a QME replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations. Neither the employee nor the employer shall have any liability for payment for the medical evaluation which was not completed within the time frames required under this section unless the employee and the employer each waive the right to a new evaluation and elect to accept the original evaluation, in writing or by signing and returning to the medical director either QME form 113 (notice of denial of request for a time extension)  or QME Form 116 (Notice of Late QME/AME Report- No Extension Requested)."

Subsection (h) states the following:

"The time frame for supplemental reports shall be no more than sixty (60) days from the date of a written or electronically transmitted request to the physician by a party.  The request for a supplemental report shall be accompanied by any new medical records that were unavailable to the evaluator at the time of the original evaluation and which were properly served on the opposing party as required by labor code section 4062.3.  An extension of the sixty (60) day time frame for completing the supplemental report, of no more than thirty (30) days, may be agreed to by the parties without the need to request an extension from medical director."

Subsection (a) talks about the 30-day time frame for service of "the initial or a follow-up comprehensive medical legal evaluation". Subsection (h) talks about the 60-day time frame for service of a "supplemental" report. It is a little confusing what the difference is between a "follow-up" report which must be served in 30 days and a "supplemental" report that is allowed 60 days for service. As subsection (h) is more specific to the request for a supplemental report, it would appear that the 60-day time frame would apply to a request for a supplemental report.

Two major public policy considerations have to be balanced when trying to interpret these rules. The first public-policy goal is to prevent doctor shopping, and the second public-policy goal is to speed up the process to deliver benefits promptly.

The commissioners in Lopez determined that Section 38(h)'s 60-day time frame in which a Panel QME has to respond to a supplemental report request should not commence until the QME actually receives the request.

Though the commissioners' decision here is brief, there are several reasons why their interpretation of this statute is correct. The statute makes reference to the transmission or communication of the request. The statute states "from the date of a written or electronically transmitted request to the physician by a party". If the 60 days became operable as of the date on the request, this language would be devoid of meaning.

Additionally, if the 60-day period is determined to begin as of the date on the supplemental request, then the doctors' offices around the State will be at the whim of the individual party's practice of getting the mail out in a proper and timely fashion. If an office fails to send out a supplemental request in a timely fashion, or fails to send the request at all, then that party may elect to simply remove the doctor for not timely responding. A party could very easily manipulate the QME process by sitting on supplemental report requests to an objectionable physician.

In conclusion, though the litigation involved with removing the PQME is not likely going to disappear, as the commissioners continue to address these issues, the litigation over these rules will likely decrease, allowing the parties to instead focus their attention on the more substantive issues applicable to a given case.

Reminder: Practitioners should check the subsequent history of this panel decision before citing to it.

Any information or opinion contained in this commentary are not necessarily endorsed by LexisNexis or its affiliates or by the LexisNexis editorial consultants who review panel decisions.

� Copyright 2011 LexisNexis. All rights reserved. This article will be published in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.