A panel qualified medical examiner is entitled to payment of the evaluation fee if there was no timely objection to a late report

This is a Writ Denied case

This is a very significant case for workers’ compensation principles.

The applicant alleged an industrial cumulative trauma. The parties chose a panel qualified medical examiner in pain management. The doctor issued the report on the 38th day. The applicant objected to the report as untimely. Defendant did not object until later.

A replacement panel doctor was issued but the parties did not seek an evaluation from the replacement. The parties eventually settled the case based on the initial doctor’s reports. The defendants agreed to pay the doctor. After defendants failed to pay the doctor the doctor filed a petition with the Workers’ Compensation Appeals Board (WCAB).

The Workers’ Compensation Judge (WCJ) indicated the defendant was not liable for the payment because the report was untimely under Labor Code section 4062.5.

The WCAB noted that under section 139.2(j)(1) and 4062.5 an initial report must be prepared within 30 days of the evaluation which was not the case here. There was no question the report was late.

The WCAB indicated that the attorneys waived their right to the late reporting by failing to object at the earliest available opportunity. The failure to object at the first opportunity is a waiver of the issue. The only objection that was made was not timely either. An objection has to be made prior to the doctor serving the report. Therefore, the WCAB ruled the doctor had to be paid.

Case: Enstar v. WCAB (Rodriquez)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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