Strategic Considerations for Attorneys When Challenging QMEs: Timing, Tactics, and Procedural Nuances
Based on Sullivan on Comp, attorneys representing injured workers must navigate complex procedural rules when challenging Qualified Medical Evaluators (QMEs). This blog post examines key strategic considerations for attorneys who find themselves in situations where challenging a QME becomes necessary.
The Critical Timing Factor: When Is It Too Late?
The timing of when an attorney enters a case significantly impacts the ability to challenge a QME. According to the Romero v. Costco Wholesale significant panel decision, an employee has "received" a comprehensive medical-legal evaluation for purposes of [LC § 4062.2(e)](https://app.sullivanoncomp.com/external_resources?type=LAB&number=4062.2) when the employee has "attended and participated in the medical evaluator's examination" [[SOC Section 14.29]](https://app.sullivanoncomp.com/soc/index/title/14.29?anchor=header2-14.29-11).
This creates a bright-line rule: if your client has already been examined by a QME before retaining you, you generally cannot obtain a new panel based solely on the change in representation status. The law specifically states that if an employee "received a comprehensive medical-legal evaluation and later is represented by an attorney, the employee is not entitled to an additional evaluation" [[SOC Section 14.29]](https://app.sullivanoncomp.com/soc/index/title/14.29?anchor=header2-14.29-11).
Strategic Options When Entering a Case Post-Examination
When you're retained after a QME examination but before the report is issued, consider these strategic approaches:
- Timeliness Objections
If the QME has not issued their report within the required timeframe (typically 30 days after examination), you can object to the untimeliness—but this objection **must be made before the report is served** [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8). As stated in [CCR § 31.5(a)(12)](https://app.sullivanoncomp.com/external_resources?type=CCR&number=31.5), "a party requesting a new panel or doctor on the grounds of lateness must do so prior to the date the evaluator served the report" [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8).
This creates a narrow window of opportunity that requires immediate action upon being retained.
- Ex Parte Communications
If you discover improper ex parte communications between the QME and the defense, this can provide grounds for a replacement panel [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8) [[SOC Section 14.58]](https://app.sullivanoncomp.com/soc/index/title/14.58?anchor=header2-14.58-1). The WCAB en banc in Suon v. California Dairies defined "ex parte" as communication "on or from one party only, usually without notice to or argument from the adverse party" [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8).
Strategic Consideration: Review all correspondence between the defense and the QME to identify potential violations. Remember that the WCAB has held that if you elect to terminate an evaluation due to an ex parte communication, you must do so "within a reasonable time following discovery of the prohibited communication" [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-7).
- Procedural Violations During the Examination
Review with your client whether any procedural violations occurred during the examination that might constitute "good cause" for challenging the QME, such as:
- Discriminatory conduct or abusive behavior
- Unnecessary procedures
- Failure to provide required disclosures under [CCR § 40](https://app.sullivanoncomp.com/external_resources?type=CCR&number=40)
- Violations of ethical requirements under [CCR § 41](https://app.sullivanoncomp.com/external_resources?type=CCR&number=41) [[SOC Section 14.58]](https://app.sullivanoncomp.com/soc/index/title/14.58?anchor=header2-14.58-1)
However, be aware that if your client did not object during the examination, they may have lost the right to object later based on what occurred during the exam [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8).
Tactical Considerations When Challenging Information Provided to QMEs
- Medical vs. Non-Medical Records
The WCAB treats medical and non-medical records differently. While [LC § 4062.3(b)](https://app.sullivanoncomp.com/external_resources?type=LAB&number=4062.3) limits the right to object to non-medical records, the WCAB has held that "the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve that objection" [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-7).
Strategic Consideration: The WCAB has noted that "failure to object at the first opportunity may be construed as an implicit agreement by the opposing party to provision of the information to the QME" [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-7). This creates an urgency to review all materials provided to the QME immediately upon being retained.
- Weighing the Remedy Against the Violation
The WCAB has "wide discretion in fashioning an appropriate remedy for a violation of [LC § 4062.3(b)](https://app.sullivanoncomp.com/external_resources?type=LAB&number=4062.3)" [[SOC Section 14.41]] (https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8). When determining whether to seek a replacement panel, consider the factors the WCAB weighs:
- The prejudicial impact versus the probative weight of the information
- The reasonableness, authenticity, and relevance of the information
- The timeline of events and attempts to cure violations
- Case-specific factual reasons that justify replacing or keeping the current QME
- The length of time the QME has been on the case
- Whether there were good-faith efforts to agree on information provided to the QME
- The constitutional mandate to accomplish substantial justice expeditiously [[SOC Section 14.41]](https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8)
Strategic Consideration: The WCAB "disfavors permitting a party to wait until receipt of a QME's report to determine whether it wants to object to it" [[SOC Section 14.41]] (https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-8). This means you should act quickly upon discovering potential violations rather than waiting to see if the report is favorable.
Procedural Pathways for Challenging QMEs
- Removal as the Proper Procedural Avenue
The WCAB has held that "removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME" [[SOC Section 14.41]] (https://app.sullivanoncomp.com/soc/index/title/14.41?anchor=header3-14.41-7). This is important to remember when formulating your challenge strategy.
- Proper Procedure for Replacement Panels
For cases with dates of injury on or after January 1, 2005, requests for replacement panels should be mailed to the Medical Unit rather than obtained online. The WCAB has found that obtaining a new panel online when a replacement panel is warranted may result in the panel being found invalid [[SOC Section 14.51]](https://app.sullivanoncomp.com/soc/index/title/14.51?anchor=header2-14.51-3).
Strategic Warning: The WCAB has penalized attorneys who attempt to use "sharp practice" and "gamesmanship" to obtain an advantage, such as using different claim numbers to obtain second panels online [[SOC Section 14.51]](https://app.sullivanoncomp.com/soc/index/title/14.51?anchor=header2-14.51-3).
Conclusion: Act Decisively But Strategically
When retained after a QME examination but before the report is issued, attorneys face significant limitations but still have strategic options. The key is to act quickly to identify potential procedural violations, improper communications, or timeliness issues that might provide grounds for challenge.
Remember that the WCAB has consistently emphasized that challenges must be made promptly upon discovery of potential violations. Waiting until after receiving an unfavorable report will likely result in your challenge being rejected.
By understanding these strategic considerations and procedural nuances, you can better protect your client's interests even when entering a case after a QME examination has already occurred.