Jacquez v. Andres Management, Inc. (BPD) ( 2014 Cal. Wrk. Comp. P.D. LEXIS 574):
The WCJ took the matter off calendar and the applicant filed a petition for removal.
The WCAB agreed with the WCJ’s order to take the matter off calendar .
Labor Code § 4061 (i) provide that no issue relating to a dispute over the existence or extent of permanent disability and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has been a medical evaluation by a treating physician and either an agreed or a qualified medical evaluator.
The WCAB held the defendant violated LC 4061(i) by filing a DOR on the issue of PD without an evaluation by an AME or QME.
The WCAB rejected the defendant’s argument that the applicant lost the right to an AME or QME evaluation by failing to act with due diligence or failing to object to the DOR.
It the WCAB noted that LC 4061 does not contain a specific time limit for objection, and that one must be made within a reasonable time.
The WCAB found that the applicant acted with due diligence by requesting a panel QME nine weeks after it was served with the treating physician’s permanent and stationary report.
The WCAB concluded that the defendant’s failure to serve the report before filing the DOR constituted an extraordinary circumstance under former CCR 10251(d) to excuse the applicant’s failure to object to the DOR.