2011-EB-8 (2010). TSEGAY MESSELE vs. PITCO FOODS INC.; CALIFORNIA INSURANCE COMPANY Defendants.

• Court: California

California Workers Compensation Decisions 2011. En banc decisions 2011-EB-8 (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 DECISION AFTER RECONSIDERATION (EN BANC)On November 4, 2011, we granted reconsideration of our September 26, 2011 Opinion and Decision After Reconsideration, Order Granting Removal, and Decision After Removal (En Banc)(fn1) on our own motion and issued a notice of intention to modify the September 26, 2011 decision to provide that the principles set forth in that decision shall apply to other cases prospectively from September 26, 2011.(fn2) We allowed anyone wishing to respond to our proposed modification ten days from service of the notice of intention, plus five calendar days for mailing (Cal. Code Regs., tit. 8, § 10507(a)(1)), within which to file written comments. The time period for filing comments has elapsed, and we have not received any comments in response to our November 4, 2011 notice of intention. Having received no comments in opposition to our notice of intention, we will now amend our September 26, 2011 decision to clarify that it shall apply to other cases prospectively from September 26, 2011. In our September 26, 2011 decision, we addressed questions associated with the timeline set forth in Labor Code section 4062.2(b)(fn3) for selecting an agreed medical evaluator (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. (2011) 76 Cal.Comp.Cases 956, 958 (Appeals Board en banc).) (Footnotes omitted.)

As we explained in our November 4, 2011 notice of intention,

"Our intention in issuing the September 26, 2011 decision was to clarify the existing law on issues not previously addressed in a binding Appeals

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