What the panel ordered
Findings and Award issued by the WCJ on December 17, 2021, affirmed.
Petition for reconsideration or removal of a prior Findings and Award decision by the WCJ was granted for further review.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The court found that the defendant's strike on October 4, 2021, was timely because the time to strike is triggered by service of the panel list, not assignment, and the defendant's strike was within the allowed time including the mailbox rule extension.
From the decision · page 2The Applicant was employed for Defendant La Venadita Meat Market Inc. on May 22, 2021 when he sustained an admitted industrial injury to his right index finger. A QME panel was requested by Applicant's attorney on September 20, 2021. The panel was issued on September 21, 2021 and served on Defendant by Applicant's counsel on September 21, 2021. Applicant struck Russell Ellis on September 28, 2021. Defendant struck Joel Bird on October 4. 2021. The remaining QME on the list was Emily Holbrook. The matter proceeded to an Expedited Hearing on November 29, 2021. The issue before this court was whether the Defendant's panel strike was timely.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant's strike on October 4, 2021, was thirteen days after service of the panel list on September 21, 2021.
Favours Defendant prevailed
This timing was within the ten days allowed by Labor Code 4062.2(c) plus the five days allowed by the mailbox rule under California Code of Regulations 10605(a)(1).
From the decision · page 2The Applicant was employed for Defendant La Venadita Meat Market Inc. on May 22, 2021 when he sustained an admitted industrial injury to his right index finger. A QME panel was requested by Applicant's attorney on September 20, 2021. The panel was issued on September 21, 2021 and served on Defendant by Applicant's counsel on September 21, 2021. Applicant struck Russell Ellis on September 28, 2021. Defendant struck Joel Bird on October 4. 2021. The remaining QME on the list was Emily Holbrook. The matter proceeded to an Expedited Hearing on November 29, 2021. The issue before this court was whether the Defendant's panel strike was timely.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code
Labor Code 4062.2(c)
The statute provides the time frame for striking a QME panel member starting from assignment of the panel, but the court interpreted it to include service time.
From the decision · page 3California Code of Regulations 30(b)(l)(C). In relevant part Labor Code 4062.2(c) states 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. In relevant part, California Code of Regulations 30(b)(l)(C) states that the party requesting a QME panel online shall print and serve a paper copy of the online request, the panel list, and a copy of any supporting documentation that was submitted online, upon the opposing party with a proof of service, within l (one) working day after generating the QME panel list. Within 10 (ten) days of service of the panel, each party may strike one name from the panel.
California Code of Regulations
California Code of Regulations 30(b)(1)(C)
Regulation requires the party requesting the QME panel to serve the panel list on the opposing party, triggering the time to strike.
From the decision · page 3California Code of Regulations 30(b)(l)(C). In relevant part Labor Code 4062.2(c) states 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. In relevant part, California Code of Regulations 30(b)(l)(C) states that the party requesting a QME panel online shall print and serve a paper copy of the online request, the panel list, and a copy of any supporting documentation that was submitted online, upon the opposing party with a proof of service, within l (one) working day after generating the QME panel list. Within 10 (ten) days of service of the panel, each party may strike one name from the panel.
California Code of Regulations
California Code of Regulations 10605(a)(1)
Provides an additional five days for a party served by mail or other non-personal service methods to exercise rights, applied here to the QME panel strike timing.
From the decision · page 4Based on the current procedure, the names of the panel QMEs is provided to opposing counsel through service of the panel list by the party who made the request. Since the non-requesting party would not be aware of the names on the panel list until the list is served, service is the action that triggers a non- requesting party's right to strike. In the case at hand, Defendant made their strike thirteen days from the date the panel was served by Applicant. Based on Labor Code 4062.2(c) which allows ten days for a party to make their panel strike, and Cal. Code of Regulations Section 10605(a)(1) which provides for an additional five days from the date of service to the party who was served in California by mail, fax, email, or any method other than personal service, Defendant's strike was timely. (Report, January 21, 2022, pp.
What proof carried it
The evidence the panel weighed, by kind.
The court considered the timing of the QME panel strike and the service of the panel list as critical evidence.
From the decision · page 4Based on the current procedure, the names of the panel QMEs is provided to opposing counsel through service of the panel list by the party who made the request. Since the non-requesting party would not be aware of the names on the panel list until the list is served, service is the action that triggers a non- requesting party's right to strike. In the case at hand, Defendant made their strike thirteen days from the date the panel was served by Applicant. Based on Labor Code 4062.2(c) which allows ten days for a party to make their panel strike, and Cal. Code of Regulations Section 10605(a)(1) which provides for an additional five days from the date of service to the party who was served in California by mail, fax, email, or any method other than personal service, Defendant's strike was timely. (Report, January 21, 2022, pp.
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About this page
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