WCDefenseCA

Hello, dear readers!  Did you miss me?  As a peace-offering for forcing you all into WCDefenseCA withdrawal (my dog ate my blog posts – I swear!), I bring you the interesting case of Carlos Cabrera Razo v. Las Posas Country Club.

In pre-SB-863 California Workers’ Compensation, after a panel issued, a party had to make empty and meaningless gestures to consider using one of the panel QMEs as an AME.  10 days after the panel issued, the parties could begin the strike process, to leave the last QME standing.  If, however, a party failed to strike a name by the 13th day after the panel issued, the other party could make the selection.

Interestingly, as we learned in the Guillen case, the 10-day waiting period to strike is not mandatory, and a party can strike immediately.

Well, SB-863 changed several things about the panel process, which, in his heart of hearts, your humble blogger hopes will join parachute pants and snooze buttons on smoke alarms in the land of bad and abandoned ideas.

SB-863 got rid of the need for meaningless AME offers and boilerplate Primary Treating Physician objections.  It also codified Guillen in the sense that there is no longer an argument for requiring a 10-day waiting period prior to starting the strike process.

But, it also got rid of the 3-day waiting period.  (See Labor Code section 4062.2(c).)

So, we have the issue of the Razo case.

In Razo, the original panel was issued on October 18, 2012, and a replacement panel was ordered on November 30, 2012, which then issued on January 3, 2013.  Defendant struck one name from the panel on January 11, 2013 (8 days later), and then on January 14, 2013 (11 days after issuance) selected a QME from the panel.  Applicant struck a name on January 15, 2013 (12 days after issuance).  Was applicant’s strike valid?  This question turned, naturally, on whether the 2012 version of Labor Code section 4062.2 applied to a 2013 panel, or if it was the 2013 version.

The WCAB relied on section 84 of SB-863, which made all sections applicable to all pending matters, unless otherwise stated.  Accordingly, even on an pre-1/1/13 injury, and even if the panel was requested or ordered prior to 1/1/13, the fact that the panel was issued after 1/1/13, means that there is a 10-day strike process, and not a 13-day strike process.

HOWEVER – the panel also held that the 5-day waiting period applies to the strike process, rendering applicant’s strike timely.   (See California Code of Civil Procedure section 1013; Messele v. Pitco Foods, Inc. (2011; en banc).)

Here’s the problem though – for years we’ve been told that the 5-day mailing period does not apply to the strike process.  In fact, the CAAA repeatedly told its members to rely on the case of Alvarado v. WCAB (2007) 72 CCC 1142 for the proposition that while the 5-day waiting period may apply to the timing of a panel request, it does not apply to the striking of a name from a panel.  (In case you’re wondering, yes – the panel does specifically disagree with Alvarado.)

So, if this case is any indication, the parties have an additional 5 days to make a strike upon one of the names from a panel.  It also appears that the parties have an additional 5-day delay in getting to pick a QME from the panel.

Don’t these petty disputes make you wish you could just pick your own QME?