In Teresa Perez v. Accord Lodging North America/Motel 6, 2011 Cal. Wrk. Comp. P.D. LEXIS 135, a panel of commissioners addressed the critical question of when the 10-day period to reach an agreement on a physician elapses. When the 10-day period elapses, this determines the first day a panel request can be made. This, in turn, decides which party is the "first" to request the QME panel and, thus, which party is able to designate the specialty of the QME. In Perez, applicant contended that the WCJ erred in applying Labor Code section 4062.2(b) to find defendant's panel QME request valid, because defendant filed its request on the 10th day after its written proposal for an agreed medical evaluator (AME).

The facts in Perez were that in a letter dated January 29, 2010, defendant proposed an AME. On February 8, 2010, defendant requested a panel QME in orthopedics. On February 10, 2010, applicant requested a panel of chiropractic QME's. On May 13, 2010, applicant submitted another request. A panel issued on May 11, 2010, in response to defendant's request, and a panel issued on July 14, 2010, in response to applicant's request.

The WCJ determined that the date of defendant's January 29, 2010 letter counted as the first day of the 10-day period specified in Labor Code section 4062.2(b), that the 10th day was February 7, 2010, and that defendant's panel request of February 8, 2010, was therefore valid. He additionally concluded that if February 8, 2010, was the 10th day, the panel request could still be made on that date and be valid.

In addressing which QME request was valid, the panel of commissioners in Perez stated:

"Both Code of Civil Procedure section 12 and Government Code section 6800 provide, 'The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.'... Pursuant to this well-established method of calculating the time in which to act, the ten-day time period for agreeing to an AME excludes the first day-the date of the first written proposal- and includes the last, or tenth, day. We therefore agree with applicant that a request for a panel QME could validly be made after the tenth day i.e. on the eleventh day or later...Defendant's written proposal was on January 29, 2010. Its February 8, 2010 panel request was premature because it occurred on the tenth day, which was still within the period for the parties to agree to an AME."

Thus, the commissioners concluded that applicant requested a chiropractic QME panel in the present case, that her request was valid, and that the panel issued on July 14, 2010 was the correct panel in this case.

Interestingly, applicant also contended that the 10-day period in which the parties could agree on an evaluator should be extended by 5 days due to service by mail. This argument would have rendered both the February 8, 2010 panel request as well as the February 10, 2010 panel request premature and thereby invalid. The WCJ concluded that since Labor Code section 4062(b) makes no specific mention of extending the 10-day period for service by mail, the 5-day service by mail extension did not apply. The commissioners did not directly deal with that argument to the extent that the panel that issued on July 14, 2010, was in response to the May 13, 2010 panel request submitted, which would have been long after the five-day extension period would have lapsed. It will be interesting to see how this issue is addressed down the road.