Abel Vazquez

Applicant Abel Vazquez sustained an industrial injury and was being evaluated by QME Ira Fishman, M.D. for internal complaints. When applicant requested a re-evaluation, the next available appointment was 127 days out, and defendant sought a replacement panel under AD Rules 31.3(e) and 31.5(a)(2) because the QME could not schedule within 120 days. The WCJ ordered replacement of the QME, and applicant petitioned for removal, arguing the WCJ should have applied a good-cause balancing test rather than mechanically enforcing the time limits. The Appeals Board, sitting en banc, treated the petition as one for reconsideration (because the F&O was a hybrid decision containing final findings of employment and injury) but applied the removal standard since only the interlocutory QME order was challenged. The Board held that only the Appeals Board has jurisdiction to determine whether a replacement panel is valid, and that in represented cases a WCJ has discretion to order replacement of an unavailable QME only for good cause based on a multi-factor balancing test. The Board rescinded the F&O and remanded for application of the balancing factors, applying the decision prospectively.