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Vol 2, Issue 36

Find Solutions & Strategies                    September 6, 2011

QME Panel ClipboardQME Panel Requests


How to calculate the first day upon which a panel can be requested
In This Issue
* JOB POSTING: Defense attorney
* NEWS HEADLINES: Babysitter Bill controversy

A Note From the Editor

9/11 WTC 10 Yr Anniversary

Dear WC Professionals: 


This issue of the eNewsletter is dedicated to the thousands who perished on 9/11/2001, and to all the first responders and clean up crews.


If you haven't subscibed yet to our free weekly eNewsletter, send me your name and email address along with your request. 
Robin E. Kobayashi, J.D.
LexisNexis Legal & Professional - Analytical Operations
qme panel requests
How to Calculate the First Day Upon Which a QME Panel Can Be Requested.
A party may want to control the medical specialty of the QME panel for numerous reasons. For example, many believe that an orthopedic surgeon will issue a more conservative report than a chiropractor. Some believe a psychiatrist is more qualified to evaluate a psychiatric injury than a psychologist. For whatever the reason, controlling the specialty of the QME panel is often a hotly litigated issue.


Section 4062.2(b) provides,


 "If either party requests a medical evaluation pursuant to Section 4060, 4061, or 4062, either party may commence the selection process for an agreed medical evaluator by making a written request naming at least one proposed physician to be the evaluator. The parties shall seek agreement with the other party on the physician, who need not be a qualified medical evaluator, to prepare a report resolving the disputed issue. If no agreement is reached within 10 days of the first written proposal that names a proposed agreed medical evaluator, or any additional time not to exceed 20 days agreed to by the parties, either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation. The party submitting the request shall designate the specialty of the medical evaluator, the specialty of the medical evaluator requested by the other party if it has been made known to the party submitting the request, and the specialty of the treating physician. The party submitting the request form shall serve a copy of the request form on the other party." (Emphasis added.)


> Read more. subscribers can link to the cases, statutes, etc. cited in this article.


This article will appear in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.


NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.


Sanctions. WCAB, denying petition for removal filed by applicant/driver alleging injury to his back and other body parts on 11/3/2004 and during cumulative period 2/25/80 to 11/23/2004, admonished applicant's attorney that filing a petition for reconsideration to challenge WCJ's order setting case for trial could be viewed as an action or conduct that is frivolous or solely intended to cause delay and subject to sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561, as it is without dispute that a petition for reconsideration is appropriate method to challenge a final order, decision, or award, that an interim, non-final order such as a trial setting order is not a final order subject to reconsideration and that appropriate remedy is a petition for removal under Labor Code § 5310, that difference between these two methods is significant because fifteen days after a petition for reconsideration is filed WCJ is prohibited from making any order in the case or taking any action until WCAB has denied or dismissed petition for reconsideration or a decision after reconsideration, but filing of a petition for removal does not deprive WCJ of jurisdiction to proceed in a case, and that attorneys, especially experienced workers' compensation practitioners, are expected to know the legal significance of filing of a petition for reconsideration versus a petition for removal. See Corrales panel decision.


Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

blogs at the lexisnexis workers' comp law community 


Fraud Sign

Workers' Comp Fraud Blotter - Injured Letter Carrier Operated Online Adult Sex Business While Receiving Federal Workers' Compensation,  by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesCal. Comp. Cases September Advanced Postings (9/1/2011). Here's the first batch of advanced postings for the September 2011 issue. subscribers can link to the complete headnotes and summaries. Read it.
job posting 
Goldman Magdalin Krikes

WC Defense Associate. Brea office of Goldman, Magdalin & Krikes, LLP seeks attorney with minimum 5 years workers' comp defense experience, competitive salary & benefits. Submit in Word format cover letter, resume, salary history/requirements to [email protected].


Workers' Comp Executive:

FLASH: Emergency Preparedness: Crucial to Safety and Reputation.

© Copyright 2011 Providence Publications, LLP. All rights reserved. Reprinted with permission.


Other News:

CA: AB 211 Sent to Governor, Would Make Retraining Vouchers Available Sooner to Injured Workers.

CA: AB 889 Would Make Household "Employers" Provide Workers Comp for Nannies, Housekeepers, Caregivers.

CA: Lawmakers Place AB 899 Babysitter Bill on Hold for 2011.

CA: AB 899 Babysitter Bill Sets Off "Storm of Protests".

CA: AB 397 Contractor Proof of Workers Comp Coverage Sent to Governor.

CA: Senate Action Awaits for Bills to Control Pharmaceutical Costs, Frictional Costs in Workers Comp System.

CA: Select Staffing to Appeal $50M Judgment for Alleged Underpayment of Workers Comp Premiums, Underreporting of Payroll.

CA: School District Employee Ordered to Pay for Gasoline He Took for Personal Use.

US Dept of Labor Warns That US Postal Service Default Could Harm Workers Injury Fund.

Federal Employee Groups Urge Congressional Committee to Reject Cuts to Pay, Workers Comp Benefits.

9/11 Victim Compensation Fund: Special Master Issues Final Ruling.

NCCI Posts Latest Report on Gauging the Economy.

2011 Workers Comp Reforms Not a Big Victory for GOP.

US Labor Secretary Says All Workers, Including Illegal Workers, Should Be Protected.

US Labor Dept Signs Agreement to Protect US Migrant Workers.

Settlement-Class Insurers Launch Website to Support AIG's Workers Comp Settlement.

Workers Comp TV Sitcom Pilot Called Professional and Funny.

citeability of panel decisions

PDCITEPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel 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)]. subscribers can link to the cases cited above.

qme panels, cont.

QMEIn 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.


Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.


Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.


© Copyright 2011 LexisNexis. All rights reserved.

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enewsletter archives

Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to [email protected].

August 29, 2011: A Primer on Depositions
August 22, 2011: Vocational Expert Evaluation
August 15, 2011: Supreme Court COLA Decision
August 8, 2011: Administrative Director Rosa Moran Interview
August 1, 2011: Ogilvie: Reversed and Remanded
July 25, 2011: Liens: The Tribble Factor
July 18, 2011 (Special Alert): Valdez En Banc
July 18, 2011: Should Calif. Adopt the AMA Guides Sixth Edition?

July 11, 2011: QME Regulations: Face to Face Meetings

July 5, 2011: PQME Supplemental Reports

June 27, 2011: An MPN World: Change of Treating Physician

June 20, 2011: Sanctions: Three-Cent Dispute

June 13, 2011: A Balanced Approach to Litigation

June 6, 2011: Post-Valdez Defense Protocols

May 31, 2011: Stress-Related Compensable Consequence Injuries

May 23, 2011: Developing the Record

May 16, 2011: Overpayments

May 9, 2011: Third Party Cases

May 2, 2011: Temporary Total Disability

April 25, 2011: Non-MPN Physician Reports

April 20, 2011 (Special Alert): Valdez En Banc

April 18, 2011: 2011 Alphabet Soup

April 11, 2011 (Special Alert): Hernandez significant panel decision

April 11, 2011: Rule 38 and Medical Examiner Reports

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

March 21, 2011: Workers' Comp and Earthquakes

March 17, 2011 (Special Alert): Guitron En Banc

March 14, 2011: LC 5710 Attorney's Fees

March 7, 2011: Mediation

February 28, 2011: Arbitrations
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
February 14, 2011: In Memoriam: Carrie Nevans
February 7, 2011: Good Faith Personnel Actions
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules
January 24, 2011: Public Self-Insured Employers 

January 17, 2011: CHSWC Report on Liens 

January 10, 2011: Temporary Workers 

January 3, 2011: Permanent Total Disability & Total Loss of Future Earning Capacity



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