2011-EB-5 (2011). TSEGAY MESSELE vs. PITCO FOODS INC.; CALIFORNIA INSURANCE COMPANY Defendants.

CourtCalifornia
California Workers Compensation Decisions 2011. En banc decisions 2011-EB-5 (2011). TSEGAY MESSELE vs. PITCO FOODS INC.; CALIFORNIA INSURANCE COMPANY Defendants WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIATSEGAY MESSELE,Applicant, vs. PITCO FOODS, INC.; CALIFORNIA INSURANCE COMPANY, Defendants.Case No. ADJ7232076OPINION AND DECISION AFTER RECONSIDERATION, ORDER GRANTING REMOVAL, AND DECISION AFTER REMOVAL (EN BANC)The Appeals Board previously granted applicant's petition for reconsideration of the January 20, 2011 decision of the workers' compensation administrative law judge (WCJ), wherein it was found that the properly assigned qualified medical evaluator (QME) panel in this case was the panel requested by defendant, not the panel requested by applicant.(fn1) On reconsideration, applicant contends that the WCJ erred in applying Code of Civil Procedure (CCP) section 1013 to extend by five calendar days the 10-day time period provided in Labor Code section 4062.2(b) for the parties to agree on an agreed medical evaluator (AME), during which time period the parties may not request a panel QME. Applicant further contends that, if CCP section 1013 is held to apply, the five-day extension would invalidate defendant's panel QME request as well as applicant's request. Because of the important legal issues regarding the timeline set forth in Labor Code section 4062.2(b) for selecting an AME and requesting a panel QME, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)(fn2) For the reasons discussed below, we hold: (1) when the first written AME proposal is "made" by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California;(fn3) and (2) the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.(fn4) I. BACKGROUND On January 29, 2010, applicant sustained an admitted industrial injury to his hand. Amendments to his application added additional body parts. On April 20, 2010, defendant objected by mail to the primary treating physician's opinion, pursuant to Labor Code section 4062, and proposed a physician to serve as AME. On April 26, 2010, applicant's attorney proposed via fax several different physicians to serve as AME. On May 1, 2010, applicant submitted to the Division of Workers' Compensation (DWC) Medical Unit a QME panel request (Form 106). (See Cal. Code Regs., tit. 8, § 106.) Applicant requested a pain medicine specialist panel, indicated that the treating physician was a hand specialist, and indicated that the opposing party's specialty preference was a hand specialist.(fn5) On May 4, 2010, defendant submitted a QME panel request. Defendant requested a hand specialist panel and indicated that the treating physician was an orthopedic specialist. Defendant did not state the opposing party's specialty preference. The DWC Medical Unit received applicant's request on May 5, 2010, and issued a panel consisting of three physicians in the specialty of pain medicine. The DWC Medical Unit received defendant's request on May 10, 2010, and issued a panel of three hand specialists. On October 6, 2010, applicant was evaluated by Brendan Morley, M.D., one of the physicians on applicant's panel. (See Defendant's Exhibit E.) Trial was held on December 29, 2010. The "only issue" was "which of two QME panels is proper in this matter." (Minutes of Hearing, 1:40-41.) Additionally, the Minutes of Hearing state, "As sub issues:
"Defendant contends that the 'Mail Box Rule' applies to extend the period for applicant to request a panel to 15 days, rather than the 10 days provided by regulation. In addition, defendant contends that the specialty of physician selected by applicant is improper and that the proper specialty is orthopedics." (Id. at 2:3-10.)
The WCJ served his Finding of Fact on January 20, 2011. He explained in his Opinion on Decision that if CCP section 1013(a) applies to extend by five calendar days the 10 days within which to agree on an AME, the first day on which either party could request a panel was May 6, 2011. Relying on Poster v. Southern California Rapid Transit District (1990) 52 Cal.3d 266 (Poster), and distinguishing Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679 [57 Cal.Comp.Cases 644] (Camper) and Alvarado v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1142 (writ den.) (Alvarado), the WCJ concluded that CCP section 1013(a) does apply. He found that applicant's request was premature and that defendant's panel was the proper one. He did not make any finding regarding the appropriate specialty. Applicant filed a petition for reconsideration. Defendant filed an answer. In his Report and Recommendation on Petition for Reconsideration (Report), the WCJ recommended that we grant removal and find both panel requests premature. We granted reconsideration on April 13, 2011. II. DISCUSSION We note initially that applicant's petition seeks reconsideration of a Finding of Fact determining which QME panel was properly assigned. The WCJ's finding did not determine any substantive rights or liabilities of the parties and was, therefore, not a "final order, decision, or award" within the meaning of Labor Code sections 5900 and 5903. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068 [65 Cal.Comp.Cases 650]; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39 [43 Cal.Comp.Cases 661].) Because the WCJ did not issue a final order, his decision was not properly reviewable by reconsideration. Applicant's petition should have requested removal instead of reconsideration, and we erred in granting reconsideration instead of removal. (See Lab. Code, § 5310; Cal. Code Regs., tit. 8, § 10843.) To correct this error, we will vacate our April 13, 2011 Opinion and Order Granting Petition for Reconsideration and, deeming applicant's petition as one for removal, we will grant removal and issue our Decision After Removal. Under Labor Code section 4062(a), if an injured employee is represented by an attorney the parties have 20 days to object to a medical determination by the treating physician concerning any medical issue not covered by sections 4060 or 4061 and not subject to section 4610. "If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained." (Lab. Code, § 4062(a).)(fn6) Labor Code 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.)
A. When the First Written AME Proposal is "Made" by Mail or by Any Method Other Than Personal Service, the Period for...

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