Jul 02 2014

Time for Striking PQME

Labor Code 4062.2 allows a party 10 days plus 5 days for mailing from the assignment of a QME to strike the name from the panel.

Razo v. Hartford (BPD) (42 CWCR 43):

Applicant cant claimed a cumulative injury to multiple parts of his body arising out of his employment as a driver. Defendant denied liability for the claim.

A QME panel in the field of internal medicine was provided on January 3, 2013, to resolve the medical issues.

Eight days later, defendant exercised their right to strike a member of the panel, and three days after that, defendant designated one of the remaining members to be the QME. On the following day January 15, 2013 applicant exercised their right to strike a member of the panel.

A QME panel in the field of orthopedics was provided on January 3. Defendant again struck one from the list and designated another to be the QME. Applicant then exercised his right to strike that member.

The matter proceeded to hearing and the issues framed were (1) whether applicant timely exercised his right to strike a member of the QME panel and (2) whether the 2012 version or the 2013 version of 4062.2 applies.

The WCJ found the applicant timely exercised his right to strike members from the panels. In doing so, the WCJ applied the 2012 version of 4062.2 (c). That section reads if the parties have not agreed on a medical evaluation from the panel by the 10th day after assignment of the panel, each party may then strike one name from the panel.

The WCJ explained the statute gave the applicant 10 days +3 working days, until January 16, 2013 to strike a panel and the strike took place on January 15, 2013 with therefore was timely.

Defendants filed a petition for reconsideration.

The WCAB indicated that 4062.2 was amended January 1, 2013 to read 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 evaluator.

The act included an amendment providing that it would apply to all matters, regardless of date of injury unless otherwise specified, but it not be the basis for reopening any decisions.

The board citing the case of Sierra Pacific (71 CCC 714) stated that procedural changes apply to existing cases but not retroactively.

The board explained that the reason for this rule was that procedural statutes may become operative only when and if the procedure or remedy is invoked, and if the trial postdates the enactment, the statue operates in the future regardless of the time of occurrence of the events giving rise to the cause of action. In such cases the statutory changes are said to apply not because they constitute an exception to the general rule of statutory construction, but because they are not in fact retroactive. There is no problem as to whether the legislature intended the changes to operate retroactively.

Consequence, because 4062.2 governs the panel QME process, it is a procedural statute and its application in this case was perspective. The amended version was therefore applicable and applied to the January 13, 2013 assignment of the QME panel in this case.

Nevertheless 4062.2 allows a party 10 days plus 5 days for mailing from the assignment of a QME to strike the name from the panel.

Thus, the panel concluded that all the WCJ had applied the wrong version of the statute but had reached the correct result. The QME strike on January 15, 2013 was timely. The petition for removal was denied.

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