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WCAB En Banc: +5 Days for IMR Appeal AND Panel Strike

Hello, dear readers!

A happy Friday to one and all!  Just yesterday, the WCAB issued an en banc ruling in the matter of Matute v. Los Angeles Unified School District.  Applicant had received an adverse IMR determination on November 6, 2014, and filed an appeal on December 10, 2014, exactly 34 days after the initial determination.  When the appeal was heard by a workers’ compensation Judge, it was ruled untimely because Labor Code section 4610.6(h) provides that “[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal … served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer.”

The WCAB interpreted the term “mailing” as above, to mean “served by mail.”  Accordingly, the en banc opinion reversed the WCJ’s finding, as the WCJ started counting the 30 days from the date of mailing, without addition an additional 5 days for service, as per California Code of Civil Procedure section 1013(a).

Now, the basic point held in this opinion is that you get an extra five days on top of the 30 to appeal an IMR determination.  But that’s not the gem in this opinion, as far as your humble blogger is concerned.

The opinion can be applied to the panel strike process – do you have 10 days from the date of issuance of the panel to strike a name, or fifteen?  This blog commented on this post some time ago – practitioners had a writ denied case on one hand, telling them the 5-days don’t apply to panel strikes, and a panel decision from 2014 telling them that the 5-day period does apply.

Now, it appears, there is a binding en-banc approval of the holding that parties have an additional 5 days to contemplate and strike a name from a panel.  (See page 6, footnote 10).

Don’t get your humble blogger wrong, dear readers – this isn’t all bad or all good.  On the one hand, IMR tends to overwhelmingly uphold UR determinations, so giving an applicant an additional 5 days to appeal those decisions isn’t going to be a particularly good thing.  On the other hand, an IMR appeal can only really provide a second review to the applicant, which will still likely have the same result.  As for the 5-day application to the striking process, the extra time is not particularly important.  Most of us don’t take the full 10 days to decide who we want to strike from the panel.  But, the good thing is, there will be no more uncertainty on this point: now everyone knows exactly how much time you have to issue your strike, and the folks that issue their strike on day 14 don’t need to litigate the issue with the folks that issue their strikes on day 9.

On the subject of IMR, your humble blogger would much rather see an en banc confirmation that an IMR determination issued more than 45 days after the initial request is still valid and binding.  But, I guess your humble blogger will just have to wait, hope, and keep checking under the Soviet-non-religious-secular-new-years-tree.


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  1. Keven Star
    September 18th, 2015 at 11:02 | #1

    Nicely worded. There are frequently some silver linings in the most unexpected places. Although 30 days from date of mailing seems clear, sometimes we require the commissioners to clarify the definitions. I agree with your observation – not all bad and not all good. It is always nice to see an en banc decision as well.

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