California: Timeframes for QME Panel Requests

A WCAB panel recently issued a noteworthy decision on the timeframes for QME panel requests. Read our headnote below.

CA - NOTEWORTHY PANEL DECISIONS

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Laura Rodriguez, Applicant v. Continuing Life, LLC, Safety National Casualty Company, administered by Corvel Corporation, Defendants

W.C.A.B. No. ADJ14754391—WCJ Lawrence Keller (SFO); WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed October 28, 2022

Publication Status:  CAUTION: This decision has not been designated as 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, as these decisions are subject to appeal. 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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 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.

Disposition:  Defendant’s Petition for Removal/Reconsideration of the December 24, 2021 Findings of Fact and Order is denied.

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s finding that applicant made timely strike from qualified medical evaluator (QME) panel 14 days after assignment of panel through online process, when WCAB reasoned that 8 Cal. Code Reg. § 10605 is controlling authority governing service if it differs from Code of Civil Procedure § 1013, and broadly provides for additional time to exercise “any right” when document is served “by any method other than personal service,” that since online issuance of QME panel to requesting party is akin to “electronic service” and is not “personal service,” mailbox extension in 8 Cal. Code Reg. § 10605 is applicable, thereby entitling requesting party 10 days per Labor Code § 4062.2(c), plus additional five days to make strike, and that to extent WCAB in Crawford v. Northgate Landscape Management, 2019 Cal. Wrk. Comp. P.D. LEXIS 4 (Appeals Board noteworthy panel decision) reached different conclusion (i.e., that party who requested QME panel through online system was not entitled to additional time for mailing), WCAB’s decision was based on improper analysis of applicable mailbox extension because WCAB relied on Code of Civil Procedure § 1013 instead of 8 Cal. Code Reg. § 10605. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][a], 22.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2], Ch. 16, § 16.53[1].]