How many days do parties have to strike a doctor’s name after the day a QME panel is assigned by the Administrative Director? The answer is fifteen days according to the WCAB in the case of Razo v. Las Posas Country Club (ADJ8381652) (not yet published) dated February 7, 2014.
On January 1, 2013, California Senate Bill 863 went into effect, modifying the tight timelines for striking a name from the panel of QMEs. Labor Code section 4062.2(c) was amended to state:
“Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within 10 days of assignment of the panel by the administrative director, the other party may select any physician who remains on the panel to serve as the medical evaluator. The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process.” (Emphasis added).
In the absence of a specific “mailbox rule,” many people have concluded that the strike must occur within the first 10 days after the magical “assignment date” listed on the Panel list. In Razo, the WCAB provides some much-needed clarification regarding the application of Section 4062.2(c).
As in most cases involving calendar dates, the facts are complex and not particularly interesting. However, in the interest of understanding why the WCAB ruled as it did, here is a quick summary of the rationale.
SB 863 changed the way that parties respond to PQME lists. There is no longer a need to “Meet and Confer” within the first 10 days to try to agree on a doctor on the list before issuing a strike in the next three days. That proved to be unwieldy as early strikes were as fatal as late strikes, and hardly any parties agreed on an “AME” from the list of three – if they were going to agree on an “AME” they would have done so already. However, early and late strikes were used as an excuse to request replacement panels and some parties clogged up the WCAB with timeline disputes.
SB 863 sought to eliminate some of the gamesmanship and expedite cases by requiring only a strike, but SB 863 did not include any provision in the statute for five days for mail. Thus, a strict reading of the new L.C. 4062.2(c) would make it seem that the Administrative Director could “assign a panel” and mail it out on day 10 making it impossible to respond in time.
The WCAB has brought some common sense to the timeline by adopting the five day U.S. mail rule. In Razo, the WCAB has adopted the reasoning of the California Code of Civil Procedure (CCP) 1013 which states, in pertinent part, “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California…”
The Razo decision does differ from the former Alvarado v. WCAB (2007) 72 Cal.Comp.Cases 1142 (writ den.) case where the WCAB found CCP 1013 did not apply to QME panels because the trigger for the time period was the assignment of the panel. However, the Alvarado case applied to the old PQME “Meet and Confer” and “strike” system and did not provide time for the Administrative Director to communicate the list.
So here is the bottom line, look at the “assignment date” on the Panel list, add 15 days, and make sure your strike goes out before those 15 days have elapsed.
Michael D. Peabody is a Partner out of B&B’s Woodland Hills office. He can be reached at mpeabody@bradfordbarthel.com.
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