The WCAB determined that SB 863 changed the QME Panel timing requirements specified in Messelle v. Pitco Food, Inc. (2011) 76 Cal.Comp.Cases 956 (Appeals Bd., en banc).
In the case of David Murray v. County of Monterey a claim denial was sent to applicant by defendant’s adjusting agent on August 1, 2014 . On August 18, 2014, defendant requested a QME panel in the specialty of orthopedic surgery. The only issue at an expedited hearing was whether defendant’s QME panel request is timely. The outcome of this hearing was to determine what would be the correct specialty since applicant had requested physical medicine and rehabilitation. The WCJ found that the defendants panel request was not timely, and the defendant requested removal.
Labor Code § 4062.2, as amended by SB 863, allows a request for qualified medical evaluator panel to be made “[n]o earlier than the first working day that is at least 10 days after the mailing” of request for evaluation under Labor Code § 4060
In this case, defendant mailed the claim denial letter to applicant on August 1, 2014. The 15th day after the denial (10 days plus five for mailing) was August 16, 2014, a Saturday. Because the 15th day fell on a Saturday, that day is excluded and the next business day on which defendant could send its QME panel request was Monday, August 18, 2014. Defendant made its QME panel request on August 18, 2014, making the request a timely request.
The WCJ reached a contrary conclusion in reliance on Messelle v. Pitco Food, Inc. (2011) 76 Cal.Comp.Cases 956 (Appeals Bd., en banc). That decision, however, involved an earlier version of section 4062.2 that was substantially altered by amendment as part of Senate Bill 863.
Existing section 4062.2, which is the version applicable to this case, no longer requires the parties to seek agreement on an AME. The legislature deleted that provision in Senate Bill 863. Now the party desiring a QME panel may request one, “[n]o earlier than the first working day that is at least 10 days after the mailing” of a request for evaluation under section 4060 or an objection to the treating physician’s opinions under section 4061 or 4062. Thus, section 4062.2 now allows a request for a QME panel to be made on the 10th day after a written objection (or, on the 15th day, if the request is mailed). The rationale in Messelle, supra, is not applicable to section 4062.2 in its current version.