Client Update WCAB En Banc Decisions

CLIENT UPDATE

WCAB EN BANC DECISIONS:

By Corey Ingber[i]

MESSELE V. PITCO FOODS

 TIME FRAME FOR AGREEMENT UPON AME, PRIOR TO A PANEL REQUEST IN REPRESENTED CASES IS 15 CALENDAR DAYS, NOT 10, IF SERVICE OF PROPOSAL IS MADE IN ANY MANNER OTHER THAN BY PERSONAL SERVICE

The WCAB has issued an En Banc decision, which means that it is binding upon all WCAB offices statewide.  This decision stems from a dispute governing the time frames associated with the commencement of the PQME process in represented cases, under Labor Code 4062.2.  In a technical and procedurally based decision, applying the California Code of Civil Procedure, the WCAB has ruled:  [1] The 10 day time frame within which either party may make a request for the use of an AME, per 4062.2, as a pre-condition for the filing of QME Form 106, “Request for QME Panel Under Labor Code 4062.2 Represented” starts from the date of the written request proposing an AME.  [2] The actual date of that request does not count in the 10 days, but rather “day 1” starts the next day.  To illustrate, if the written request is made on 10/1/11, then “day 1” is actually 10/2/11 and the time period starts from there.

[3] Provided the written request is made in any manner other than by personal service, then the 10 day period is extended by 5 calendar days (CCP 1013) provided the place of mailing and the address of the receiving party are both within California.[1]  [4] Therefore, under Labor Code 4062.2, the time for agreement upon an AME is 15 calendar days, if the written request is made “in writing” and served in any manner ( U.S. mail, fax, E-mail) other than by personal service.

In yet another decision where “gotcha” is the game, the WCAB determined that both parties were actually premature in making their requests for a PQME and that neither had waited the proper time frame before acting.  Here, the defendant actually requested the PQME on the “15th day, which under this decision, was still the “last day” upon which the parties could still technically agree upon an AME and therefore a request for a PQME made on the 15th day was premature and hence not properly made.  Instead, the defendant should have made their request on the first day upon which they could properly do so, which was the“16th day.”  Therefore, both panel requests were deemed untimely under Labor Code 4062.2.

Comment:

The triggering mechanism for the 15 day time frame is a “written” proposal to use an AME.  Under Labor Code 4062.2, the WCAB will construe any written proposal sent by U.S. mail, fax or E mail as starting the 4062.2 process and regardless of the mechanism of service, unless personally served upon the other party, the 5 additional days under CCP 1013 will apply.

 If you want to avoid the trigger mechanism, then simply refrain from making a written      proposal, until you are prepared to handle the time frames and accept the running clock on the 15 days.  That way, you can start the negotiation process for an AME informally   and without triggering the time frames.  You also might know in advance whether applicant’s attorney is agreeable to using an AME, before you get a written proposal, which has the effect of starting the 15 day time frame.  (It is generally advantageous to be the party requesting the PQME, since you get to select the medical specialty, which can be very important.)

Under this decision, the additional 5 calendar days for mailing is avoided if either party should personally serve the written proposal to use an AME on the other side.  I can see a few mischievous applicant attorneys personally serving a request on a Friday, so that by  Monday, you are on the 3rd calendar day, since the date of service does not count and by the time you open your mail from Friday, you only have 7 remaining days to respond to        the AME request.

Of course, the Code also permits the parties to agree to an extension of time up to no more than 20 calendar days.

Remember, if the 15th day falls on a weekend or court holiday, then you go to the next working day.


[1]  Time is extended to 10 days if either place of mailing or place of address of mailing is outside of  California, and 20 calendar days if either mailing or place of address is outside the U.S.


[i] Copyright Corey A. Ingber 2011, all rights reserved

[ii] In Tenant/Centinela Hospital Medical Center v. WCAB (2000) 80 Cal. App. 4th, 1041, 65 CCC 477, it was held that there can only be one PTP at a time.  Therefore, when the applicant was discharged from care by the PTP, and she disputed those findings, applicant was not permitted to obtain a new PTP, without first going through 4061/4062, requiring potential AME or a PQME

[iii] Citing, 8 CCR 9785(b)(1), one treatment PTP at a time and Tenant.  (see decision of WCAB at page 7)

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