On April 2020 Rogelio Trigueros filed a claim for workers’ compensation benefits claiming injury to his upper extremities, shoulders, arms, hand and fingers while employed as a farm laborer for respondent Gonzalez Ag., Inc.

On May 4, 2020, employer’s insurance carrier mailed a Notice Regarding Delay of Workers’ Compensation Benefits from Kansas City, Missouri, to petitioner in California.

Sixteen days later, Trigueros requested and obtained a panel of three chiropractic Qualified Medical Evaluators eligible to evaluate his workers’ compensation claim.

The Employer challenged the timing of his request for a QME panel and the matter proceeded to trial, resulting in the workers’ compensation administrative law judge concluding the panel was valid.

Reconsideration was granted, with the WCAB panel agreeing with employer. The WCAB replaced the WCJ’s finding with its own finding that the QME panel was invalid because petitioner prematurely requested it before waiting 20 days from mailing of the Delay Notice. In doing so, the WCAB stated it applied its own rules as set forth under California Code of Regulations, title 8, section 10605 (WCAB rule 10605) rather than the more general CCP § 1013 mail delay provisions.

In its prior en banc decision in Messele v. Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956 and as established under section 5316, the WCAB’s own rules govern service of process and any applicable extensions of time to act where they differ from the more generally applicable provisions under CCP § 1013.

However, the Court of Appeal reversed the WCAB and remanded the case of Tigueros v WCAB and Gonzalez Ag., (March, 2022)

In granting the petition for writ of review, the court notified the parties that it appeared the WCAB based its determination on the out-of-state location where the claims administrator mailed the triggering delay notice from instead of the location where it served the notice on petitioner.

WCAB rule 10605 provides that the time added for service is “(1) Five calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is within California; (2) Ten calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside of California but within the United States;

And that, pursuant to WCAB Rule 10605(a)(1), the WCAB instead should have added only five days to the statutory 10-day waiting period, for a total of 15 days, before considering the first day a party may validly request a QME panel.

The WCAB responded that it agreed and requested the Court of Appeal to annul the WCAB’s decision and remand the matter for further proceedings.