Moving to eliminate confusion and the potential disruption of thousands of workers’ comp cases, the Workers’ Compensation Appeals Board (WCAB) is clarifying an earlier decision resolving questions about the timelines for selecting agreed medical evaluators (AMEs) and requesting qualified medical evaluator (QME) panels. The modified decision states clearly that its ruling in Messele v. Pitco Foods only applies prospectively from the date of the decision.
The decision clarifies the number of days that attorneys must wait after an AME proposal is rejected before requesting a QME panel from the Division of Workers’ Compensation’s Medical Unit. The WCAB held that when the first written AME proposal is mailed to a California address or is delivered by any other means than personal service then under Labor Code section 4062.2(b) the 10 day period for seeking agreement is extended five calendar days. It also held that the clock starts ticking the day after the date of the first written proposal and includes the last day.
This decision prompted the DWC to say it would not only apply the timelines prospectively to new requests, but also would allow attorneys to challenge past awards that did not adhere to these timelines — a move that could have disrupted thousands of cases going back years. The WCAB says that was not its intent.
“It was not our intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers’ compensation proceedings,” the WCAB says in a proposal to modify the decision. “Our intention in issuing the September 26, 2011 decision was to clarify the existing law on issues not previously addressed in a binding Appeals Board decision and to prevent inconsistencies in rulings by [workers’ compensation judges] and Appeals Board panels.”
The board says that the effective date will be the date of its prior decision.
“Specifically, we propose that if, prior to our September 26, 2011 decision, a panel was prematurely but otherwise properly requested and there was no objection on the ground of prematurity, then the resulting panel may not later be challenged on that ground,” the WCAB says. “In other words, if an objection based on prematurity was not made prior to our September 26, 2011 decision, neither party may challenge the request, the ensuing panel, the remaining QME following the striking of names, or the resulting report for prematurity.”
The board is giving the workers’ comp community 10 days (plus 5 additional days for mailing) to comment on the proposed modification of its decision. Only written comments are being accepted and they must be filed with the WCAB’s Office of the Commissioners.
Brad Cain in San Francisco