Applicant Must Attend Defendants QME Exam

This is a writ denied case. However, it deals with a frequent issue for a defendant. The subject is obtaining a Qualified Medical Exam (QME) before the Mandatory Settlement Conference (MSC).

The applicant had an admitted injury in 1994. The applicant who was unrepresented at the time became permanent and stationary in 1997.  The applicant refused a settlement offer and retained an attorney.

The applicant’s attorney filed a declaration of readiness to proceed in December 2000. The defendant was unrepresented at the time. The defendant obtained counsel who gave notice of their representation on February 5, 2001. No objection to the declaration of the readiness to proceed was filed by the defendant. The defendant then sent notice of a defense medical examination set for March 7, 2001. Applicant’s attorney instructed the applicant not to attend.

The MSC was set on March 13, 2001.  The Workers’ Compensation Judge (WCJ) denied the defendant’s request to have the applicant compelled to attend defendant’s exam.

The defendant filed a Petition for Reconsideration and the Workers’ Compensation Appeals Board panel that reviewed the Petition treated the petition as a Petition for Removal. The panel granted review and rescinded the WCJ’s decision.

The decision is interesting in that it emphasizes the defendant did not file an objection to the declaration of readiness to proceed. Thus, if the defendant would have done so, there may be a different result. This also infers the defendant would have had a legitimate reason for filing an objection to the declaration of readiness to proceed.

The panel indicated that the defendant did schedule the medical examination prior to the MSC. Therefore, applicant should have kept the exam contrary to the applicant’s attorneys instruction.  Since the applicant did not keep the exam the applicant was ordered to attend the examination. However, discovery was otherwise closed.  The panel did elucidate that if the applicant did keep the examination of March 7, 2001 as originally scheduled and the medical report from the doctor was unavailable at the MSC on March 13, 2001, the report would not have been admissible. The panel indicated that the WCJ could have excluded the report pursuant to Labor Code section 5502 (d) (3) and issued an order that, discovery is closed.

Case: Leaverton V. WCAB (Lucent Technologies) 3 WCAB Rptr. 10,271

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

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