ADJ3190781 — California WCAB decision

What the panel ordered

Findings of Fact issued by the WCJ on December 28, 2020, are affirmed after remand.

Remanded by the Fifth Appellate District Court of Appeals on March 30, 2022, vacating the prior WCAB decision and remanding for further proceedings consistent with the appellate opinion.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRApplicant prevailed

The WCAB and the Court agreed that the applicant's request for a QME panel was timely because the applicant waited the required 15 days (10 days plus 5 days for mailing) before submitting the request, consistent with the applicable Labor Code and WCAB rules.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant waited 16 days from the date of mailing of defendant's claim delay notice before submitting the QME panel request.

Favours Applicant prevailed

This satisfied the required 15-day waiting period (10 days plus 5 days for mail service) under Labor Code section 4062.2(b) and WCAB Rule 10605, making the request timely and valid.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 10605

WCAB Rule 10605 (Cal. Code Regs., tit. 8, 10605)

The rule governs the extension of time to act or respond based on mailing, which was applied to calculate the timeliness of the QME panel request.

From the decision · page 2WCAB Rule 10605 extends the time to exercise or perform "any right or duty to act or respond" by:

Labor Code section 4062.2(b)

The statute requires waiting at least 10 days after mailing a request for a medical evaluation before requesting a QME panel, which was applied to determine the timeliness of the request.

From the decision · page 2[Labor Code] section 4062.2, subdivision (6), requires the requesting party to wait until "the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation" before requesting a QME panel. Since mailing the request for an evaluation is the operative act to request a panel, the requesting party must wait ten days after the date of mailing of a request for an evaluation per section 4062.2(6) plus the applicable additional time for mailing per current WCAB Rule 10605 before they may exercise the right to request a panel. (Writ, Exh. 7, p. 38, emphasis in the original.)

Messele v. Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956

The en banc decision was applied to interpret the timing rules for requesting a QME panel and the applicable extensions of time for mailing.

From the decision · page 3As the WCAB set forth in the challenged opinion, as well as its prior en banc decision in Messele v. Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956 (Messele) and as established under section 5316, the WCAB's own rules govern service of process and any applicable extensions of time to act where they differ from the more generally applicable provisions under CCP § 1013....

Labor Code section 5316

This statute was applied to support the use of WCAB rules over general Code of Civil Procedure provisions for service of process and extensions of time.

From the decision · page 3As the WCAB set forth in the challenged opinion, as well as its prior en banc decision in Messele v. Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956 (Messele) and as established under section 5316, the WCAB's own rules govern service of process and any applicable extensions of time to act where they differ from the more generally applicable provisions under CCP § 1013....

ADJ3190781 · October 28, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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