Navarra Explains California WCAB Decision in Messele v. Pitco

On September 26, 2011, the WCAB issued an en banc decision in Messele v. Pitco. In short, the WCAB said that a party must wait 16 days after objecting to the treating doctor and offering an Agreed Medical Examiner (AME) before requesting a Panel of QMEs (PQME).

The 16-day rule is still good law.

But, on November 22, 2011, the WCAB amended its September 26, 2011 decision to clarify that it shall apply prospectively from September 26, 2011.

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The WCAB explained,

“If prior to our September 26, 2011 decision, a panel was prematurely but otherwise properly requested and there was no objection on the ground of prematurity, then the resulting panel may not later be challenged on that ground. In other words, if an objection based on prematurity was not made prior to our September 26, 2011 decision, neither party may challenge the request, the ensuing panel, the remaining QME following the striking of names, or the resulting report for prematurity.”

“Thus, for example, if a QME evaluation has already taken place, our September 26, 2011 decision does not provide grounds for a new one. If the DWC Medical Unit has already issued a panel and no objection based on the panel request’s prematurity was raised prior to our September 26, 2011 decision, that panel may not be challenged based on our September 26, 2011 decision. If an otherwise proper panel request was made, and was premature according to our September 26, 2011 decision, but no objection based on its prematurity was raised prior to September 26, 2011, any panel subsequently issued in response to that request shall not be invalidated based on that decision.”

“If, on the other hand, a panel request was made prior to our September 26, 2011 decision, which was premature according to that decision, and the opposing party promptly objected on that basis before the September 26, 2011 decision issued, the objecting party is entitled to the benefit of its correct interpretation of section 4062.2(b) because the party timely raised the issue in its own case. We express no opinion at this time as to what constitutes an adequate objection.” [emphasis in original]

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Finally, “Our September 26, 2011 decision does not constitute good cause to reopen any order, decision, or award.”

California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

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