2011-EB-7 (2010). TSEGAY MESSELE vs. PITCO FOODS INC.; CALIFORNIA INSURANCE COMPANY Defendants.

CourtCalifornia
California Workers Compensation Decisions 2011. En banc decisions 2011-EB-7 (2010). 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 ORDER GRANTING RECONSIDERATION ON APPEALS BOARD MOTION; NOTICE OF INTENTION TO MODIFY SEPTEMBER 26, 2011 OPINION AND DECISION AFTER RECONSIDERATION, ORDER GRANTING REMOVAL, AND DECISION AFTER REMOVAL; AND ORDER CORRECTING CLERICAL ERROR (EN BANC)For the reasons set forth below, we grant reconsideration on Appeals Board motion under Labo Code section 5911(fn1) and issue this notice of intention. On September 26, 2011, we issued an en banc decision in this case, resolving question; associated with the timeline set forth in section 4062.2(b) for selecting an agreed medical evaluato (AME) and requesting a panel qualified medical evaluator (QME). We held,
"(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; 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." (Messele v. Pitco Foods, Inc., 76 Cal.Comp.Cases 956, 958 (Appeals Board en banc).) (Footnotes omitted.)
Our intention in issuing the September 26, 2011 decision was to clarify the existing law on issuei not previously addressed in a binding Appeals Board decision and to prevent inconsistencies in ruling by WCJs and Appeals Board panels.(fn2) It was not our intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers' compensation proceedings or to allow parties, based on our decision, to challenge the timeliness of a panel request or the validity of panels to which they had not previously objected solely because, after the fact, they were displeased with the make-up of the panel or, worse, because the resulting QME evaluation produced a report unfavorable to their client. It was also not our intention to...

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