Use this button to switch between dark and light mode.

California: The Muddied Waters of the QME Panel Strike Process Post-SB 863

April 22, 2015 (12 min read)

When is a strike of a QME timely post-SB 863? Until further clarification is provided, parties should proceed conservatively and strike a QME within the 10-day time period.

Selection of Qualified Medical Evaluator Panels has been a frequent topic at many recent expedited hearings. One of those hearings resulted in a Noteworthy Panel Decision* of Razo v. Las Posas Country Club, 2014 Cal. Wrk. Comp. P.D. LEXIS 12 [2014 Cal. Wrk. Comp. P.D. LEXIS 12]. Carlos Razo was a driver for the Las Posas Country Club when he suffered a cumulative trauma injury to both internal and orthopedic body parts during the period ending 5/7/2012.

(Publisher’s Note: Citations link to lexis.com; bracketed citations link to Lexis Advance.)

I. Assignment of QME Panels per Labor Code § 4062.2(c)

Qualified Medical Evaluator (QME) Panels in both internal medicine and orthopedics were issued by the medical unit on 1/3/2013. Defense struck a QME on both panels on 1/11/2013, well within the Labor Code § 4062.2(c) 10-day time limit for striking a QME. Then, as is permitted by Labor Code § 4062.2(c) [LC 4062.2], when opposing counsel fails to strike a QME within 10 days of assignment, defense selected his preferred QME from each list on 1/14/2013. It wasn’t until 1/15/2013, 12 days after assignment of the QME Panel by the medical unit, that the applicant’s attorney finally struck a QME from both lists.

ISSUE: Was applicant’s attorney’s strike of the QME within the 10-day time frame mandated by Labor Code § 4062.2(c)? Since 12 days exceeds the 10-day time frame, the answer is no, unless the Code of Civil Procedure § 1013(a) [CCP 1013] “+5 days for mailing” rule applies.

II. Arguments of Applicant and Defense Attorneys

The applicant’s attorney argued that pursuant to 8 Cal. Code Reg. § 10507 [R 10507] and Code of Civil Procedure § 1013(a), when a document is sent by mail, any time period within which parties are required to act, is extended by five days (i.e. the “+5 days for mailing” rule or the “mailbox rule”). Therefore, applicant’s attorney explained that he had 10 days, per Labor Code § 4062.2, plus 5 days for mailing for a total of 15 days. Since his strike was on the 12th day, he felt that he was well within the required time limit.

Defendant disagreed and argued applicant’s attorney had only 10 days within which to strike a QME from the panel. Defendant relied on the WCAB en banc decision of Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 [76 CCC 956] which held that the “+5 days for mailing” rule was triggered only by “service” of a document and not by “assignment” of a document. In fact, the WCAB in the Messele case specifically confirmed that it was not appropriate to apply the “+5 days for mailing” rule when a QME Panel is assigned by the Medical Unit under Labor Code § 4062.2(c). They cited the writ denied case of Alvarado v. WCAB (2007) 72 Cal. Comp. Cases 1142 [72 CCC 1142] in support of their decision. The WCAB in Messele wrote:

“Similarly, in Alvarado, supra, 72 Cal. Comp. Cases 1142, the Appeals Board panel found CCP section 1013 inapplicable to extend the time for a party to strike a physician’s name from a QME panel, because the operative trigger for the time period was not service. The trigger in Alvarado was assignment of the panel: ‘the time limits prescribed by Labor Code § 4062.2(c) run from the date of assignment of the three-member panel, not from service of the panel.’ (72 Cal. Comp. Cases at p. 1145.)” (Emphasis added.)

III. Holding in Razo Conflicts With WCAB En Banc Decision in Messele

The issue of whether or not applicant’s strike was timely in the Razo case was tried at an expedited hearing. The judge noted that Labor Code § 4062.2 had recently been amended by SB 863. The Judge held in favor of applicant and found that the old pre-2013 version of Labor Code § 4062.2 applied and that applicant’s strike from the QME panel was therefore timely.

On appeal, the WCAB also held in favor of the applicant, but for a different reason than the Judge. The WCAB found the new post-SB 863 version of Labor Code § 4062.2 was applicable to “all pending matters, regardless of date of injury.” The WCAB analyzed the time frames based on the new Labor Code § 4062.2(c) version applicable as of 1/1/2013, which set forth in pertinent part as follows:

“Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within 10 days of assignment of the panel by the administrative director, the other party may select any physician who remains on the panel to serve as the medical evaluator….” (Emphasis added.)

By comparison, the old 2012 version, which is the statute that was dealt with in the Alvarado case, cited above, read in pertinent part as follows:

“Within 10 days of assignment of the panel by the administrative director, the parties shall confer and attempt to agree upon an agreed medical evaluator selected from the panel. If the parties have not agreed on a medical evaluator from the panel by the 10th day after assignment of the panel, each party may then strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within three working days of gaining the right to do so, the other party may select any physician who remains on the panel to serve as the medical evaluator….” (Emphasis added.)

Both the old 2012 and new 2013 incarnations of this10-day QME striking mandate are quite similar. The only difference is that the new 2013 version omits the requirement that parties try to agree to an agreed medical evaluator (AME) from the assigned panel. (The old statute also allowed parties an extra 3 day time period in which to try and agree to an AME.) Other than that, the legislative intent, mandatory time period and triggering phrase “assignment of the panel by the AD” is essentially the same.

So why is the WCAB now applying a new different rule in Razo, than the old previous rule applied in both Alvarado and Messele? The “old” rule being that only “service” of a document triggers the “+5 days for mailing” rule. While the “new” rule, applied in the Razo court, is that “assignment” of a QME panel, as well as “service” of a document will trigger the “+ 5 days for mailing” rule. The latter rule provides parties an additional 5 days to strike a QME from the assigned QME panel.

IV. WCAB’s Rationale in Razo

The WCAB’s rationale for applying this new rule is as follows:

1. “Messele involved former section 4062.2(b), whereas [Razo and Alvarado] involve [an amended] section 4062.2(c).” (Bracketed material added.) Generally, if good cause is established, it would not be unusual to have different holdings and even different rules for Labor Code subsections that have been amended.

2. “The right to strike a name would be meaningless unless the identity of the panel QMEs is communicated to parties by the Administrative Director via U.S. mail.” The 10-day time period is an extraordinarily short time in which to act, so adding 5 days to this time period makes a great deal of sense. Perhaps the legislature should have considered this when drafting and then later amending this code section.

3. “Pursuant to CCP 1013(a), when a party has a time limit to respond to a document received by U.S. mail, five calendar days is added so that a party has a total of 15 days after assignment to strike a name from the QME panel.” Hum… actually, Code of Civil Procedure § 1013(a) talks about what happens when a document is served by mail, not about when a document is received by mail. Still, credit should be given to the legislative intent. The legislature knew that when communicating information by mail (such as an AD mailing a QME Panel to the parties), it is appropriate to take into account how long it takes the post office to deliver the document, so that the parties will have the full amount of the prescribed time to take appropriate action

The only goofy thing in all of this is that, as stated above, the WCAB in their Messele en banc expressly rejected this rationale. The Razo case “distinguishes” the writ denied holding in Alvarado that holds “assignment of a QME Panel by the Medical Unit” does not trigger the “+5 days for mailing” rule, and the Messele en banc decision expressly approved of the holding in Alvarado.

So what’s a party to do? Follow the Messele en banc or the more recent Razo writ denied panel decision? Generally, an en banc decision trumps a WCAB panel decision. However, Razo deals with the current state of the law and Messele deals with a version of the law that is no longer in effect. Still, the long held rule is the same in both cases: The trigger for adding the “+5 days for mailing” is service of a document, not assignment of a document. Until the DCA or the Supreme Court or a future WCAB en banc decision provides the definitive answer, parties should proceed and calendar the most conservative route possible, which is to strike a QME from the assigned panel within the10-day time period.

V. Will the Rule Change When QME Panels Are Assigned Online?

This issue may result in more judicial interpretations once the Medical Unit releases their online QME panel request system. When that occurs, parties will be able to request QME Panels online and will be sent a QME panel online, immediately upon request. The currently proposed regulations on this procedure can be found at this link: http://www.dir.ca.gov/dwc/DWCWCABForum/QME_regulations.htm

The proposed regulations provide a process for the requestor to serve the QME panel as follows:

Proposed 8 CCR § 30(b)(3): “Serve a paper copy of the Online QME eForm 106, the panel list, and a copy of any supporting documentation that was submitted online, upon the opposing party with a proof of service, within 1 working day of generating the QME panel list.” (Emphasis added.)

One can imagine a scenario whereby the requestor obtains the QME panel list the day before she leaves for Thanksgiving holiday, say on Wednesday, November 25, 2015. When she returns, the following Monday, November 30, 2015, she hands the QME panel list to her assistant for mailing, who properly serves it on opposing counsel. The QME panel list arrives at opposing counsel’s office on Saturday, December 5th, 10 days after assignment of the QME list. On Monday, December 7, 2015 opposing counsel does not go into the office because he was at the hospital, helping his wife give birth to their first-born son.

When opposing counsel returns to his office on Tuesday, December 8, 2015, he opens the QME panel list, and he finds that the 10-day time period of Labor Code § 4062.2(c) has expired.

Is he no longer allowed to strike a QME off the list? That seems hugely unfair. But if the Labor Code § 4062.2(c) is strictly construed, and if the holding in Messele is followed, he may be out of luck.

VI. Conclusion

If the Razo case interpretation is adopted in the above hypothetical, then parties would get an additional 5 days for mailing after “assignment” of the QME panel. This would be music to the ears of our hypothetical opposing counsel, who would have an opportunity to strike a QME off the list. Logic and fairness would prevail.

In addition, there is precedent for escaping the confines of the Code of Civil Procedure. As stated above, the workers’ compensation community has our own mailbox rule which is 8 Cal. Code Reg. § 10507 [R 10507]. It is quite similar to the Code of Civil Procedure mailbox rule, except for a slight difference. Our rule provides for an extended time period for compliance of 5 days regardless of whether the service is by mail, email or facsimile. The Code of Civil Procedure, on the other hand, provides for 5 days, if by mail (Code of Civil Procedure § 1013(a) [CCP 1013]), 2 days, if by facsimile (Code of Civil Procedure § 1013(e)), and 2 days, if by email (Code of Civil Procedure § 1010.6(a)(4) [CCP 1010.6].) Something to think about.

The entire workers’ compensation community is eagerly looking forward to an imminent activation of the online QME request panel system. Hopefully it will address these issues and provide all parties a timely and appropriate opportunity to participate in the QME Panel “strike process.” A regulation following the holding in the Razo noteworthy panel decision* may well be the way to go.

* CAUTION: This decision has not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy (a “noteworthy panel decision”) because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

© Copyright 2015 LexisNexis. All rights reserved.