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California: W.C.A.B. Limits Application of Messele Decision

November 23, 2011 (2 min read)
After seeking input on its Notice of Intent to limit application of the Messele decision prospectively, and getting none, the W.C.A.B. has confirmed its decision to limit the application of its holding.  The W.C.A.B. has, in a decision which issued yesterday as follows:
  • To cases where a QME panel issued after the date of its original decision (9/26/2011)
  • To panels which issued prior to that date but a party promptly objected to the timeliness of the panel at the time the panel issued.
The Board’s application of its holding prospectively makes a great deal of sense both from a pragmatic and a legal perspective.  Pragmatically, it prevents a landslide of objections long after the parties have proceeded through QME panel processes avoiding disrupting both existing resolutions of cases and already resolved matters.  From a legal perspective, it a party has not raised the issue on a timely basis, it makes sense to consider the issue waived.  Traditional legal principles would generally require a party to raise such an issue or consider it waived.
With this decision (still appealable by either side so possibly subject to modification at a higher level) the rules on completion of the QME process are clarified considerably. (see my Eblast of the original decision for those rules).
The DWC issued a memorandum to deal with requests for QME panels in cases where there had been prior panels in an attempt to provide some order to this process.  The W.C.A.B.’s decision in this matter, to the extent it conflicts with the DWC memorandum, effectively supersedes the DWC memorandum at least as far as which reports are going to be admissible before the W.C.A.B.  There may be panels which would issue under the DWC process that end up not being admissible before the W.C.A.B. so care should be taken to make certain the concepts expressed by the W.C.A.B. in its decision are recognized when appearing before the W.C.A.B.
The W.C.A.B. declined to specifically address what was required to have raised the issue of timeliness of a QME panel prior to 9/26/11 but presumably the objection would have to have been in writing and well prior to the actual QME evaluation.  There is no time frame given in the DWC regulations for objecting to a QME panel or the QME process but anything outside of 30 days is almost certainly going to be considered untimely and less than 15 days would most likely be unquestionably timely.  Between those dates may be a gray area but I would expect most objections within that time frame to be adequate to have raised the issue.  It is also important to keep in mind the objection has to be specifically on the timeliness issue and not on some other aspect of the process.  The W.C.A.B. decision does not allow for bootstrapping of objections on a different basis into this a timeliness issue also.

 

© Copyright 2011 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.
 
Shaw Jacobsmeyer Crain Claffey LLP
 
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