California EAMS: Winning the Race to the Medical Unit

California EAMS: Winning the Race to the Medical Unit

[Note: This article was updated on January 11, 2012, to provide the reader with more information about handling civil matters.]
Workers’ compensation practitioners enjoy a rule that is unique to the world of EAMS litigation. 8 CCR 10507 provides in part as follows:
(a) If a document is served by mail, fax, e-mail, or any method other than personal service, the period of time for exercising or performing any right or duty to act or respond shall be extended by:
(1) five calendar days from the date of service, if the physical address of the party, lien claimant, attorney, or other agent of record being served is within California; (Emphasis added.)
This is almost identical to California Code of Civil Procedure (CCP) Section 1013(a) which provides in part:
“…any duty to do any act … on a date certain after service of the document … shall be extended five calendar days, upon service by mail....” (Emphasis added.)
The CCP limits the “+5 days for mailing” rule to service of documents by mail. However, the EAMS regulation allows for the “+5 days for mailing” rule for all documents served by mail, FAX or even email.
When does this come into play? More often than you might think.
The recent case of Messele v. Pitco Foods, Inc; California Insurance Company, (2011) 76 CCC 956, (WCAB en banc) sets forth the “AME agreement time frame” per LC Section 4062.2(b) as consisting of 15 days. The WCAB held that the 15 day time frame consists of the 10 day period per LC 4062.2(b), plus the 5 day period for mailing per CCP 1013. A request for a panel QME may only be made after the 15th day period has ended. (This case is to be applied prospectively only, to requests made after 9.26.2011.)
This rule may well trip up some practitioners who are not mindful of 8 CCR 10507 and the new court ruling in Messele, supra. For instance, let’s say the following scenario occurred:
5/24/11
Ida Wopner (IW) was injured at work and receives treatment by her PTP
7/11/11
Defense (D) sends a FAX to IW’s attorney, Anna Attorney (AA) objecting to the PTP’s report and offers to agree to Dr. Arnold M. Engle to serve as the AME in this case.
7/12/11
AA responds by mailing a letter to D, rejecting Dr. Engle as the AME. AA proposes Dr. Tingle as the AME.
7/16/11
Upon receipt of AA’s letter, D sends an email to AA rejecting Dr. Tingle as the AME.
7/24/11
D submits Form 106 to Request Panel QME (ortho specialty)
7/26/11
AA submits Form 106 to Request Panel QME (pain management specialty)
Which of the two Panel QME Requests would be considered proper?
Defendant’s  Request:
D does primarily civil litigation and assumed that since he FAXed his objection and AME proposal to AA, the CCP 1013(a) “+5 days for mailing” rule would not apply. (Rule is “+2 days” if service is by fax or email per CCP §§ 1013(e) & 1010.6(a)(4).) He thought that as long as he submitted his Panel QME request 12 days after the first proposal, he would be in compliance with LC 4062.2. He didn’t know that 8 CCR 10507 and the case of Messele, supra adds the “+5 days for mailing” to the AME agreement time frame period. His Form 106 would be rejected by the Medical Unit as premature.
Applicant Attorney Request:
AA read 8 CCR 10507 and the Messele case. She was fully aware of the 15 day AME agreement time frame. Unfortunately though, she missed the part that indicated parties must wait until AFTER the 15th day had ended before submitting their Form 106. AA should have waited until July 27, 2011, the 16th day after the initial proposal to submit her request for a Panel QME. Therefore, her Form 106 would also be rejected by the Medical Unit as premature.
Unfortunately, since both panel requests would be considered premature, and since both requests would be rejected as premature by the Medical Unit, it would be a race to the Medical Unit to see which parties’ second Request ends up there first.
Conclusion:
In order to avoid premature filings and to insure the Panel of QMEs offered are within the appropriate specialty, counsel should be aware of the nuances of LC Section 4062.2 as set forth above.

This blog has been approved by the California Division of Workers' Compensation.
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