Timing Issue Concerning Qme Panel Request When At Least One Party Is Located Outside Of California
As we know, one issue often litigated at Expedited Hearings is the proper issuance of a Panel of Qualified Medical Evaluators. Multiple issues can occur in this process, i.e., proper procedure, appropriate specialty, and TIMING.
Labor Code §4062.2(b) states in part,
“No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062, either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation…”
However, we are all aware of the “Mailbox rule”, which refers to additional time added to respond to certain triggering actions/events for non-personal service. For this, we examine the rule providing the timing of service. Title 8, California Code of Regulations §10605(a) now states,
“When any document is served by mail, fax, e-mail or any method other than personal service, the period of time for exercising or performing any right or duty to act or respond shall be extended by:
(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; (3) Twenty 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 the United States.”
In determining the proper timing to request a Panel, pursuant to Labor Code §4062.2(b) as noted above, an additional five (5) days must be added to the 10 days for either triggering event (4060 or 4061/4062). This is in the majority of situations since the usual circumstance is a California entity sending to another California entity.
However, if the insurance/administrator is located outside of California, and, for example, the triggering event is the mailing of an objection to PTP reporting from the applicant attorney to the insurance/administrator (with the assumption a defense attorney has not yet been retained), you must remember to add ten (10) calendar days to the 10 days of the triggering event.
But what happens in the reverse, i.e., when the party serving the triggering event is located outside of California and the party being served is within California. For that, we must read the rest of CCR §10605, specifically subsection (b). It reads,
“For purposes of this rule, “place of address and the place of mailing” means the street address or Post Office Box of the party, attorney or other agent of record being served, as reflected in the Official Address Record at the time of service, even if the method of service actually used was fax, e-mail or other agreed-upon method of service.”
A recent case appears to have now further clarified this issue in Trigueros v. Gonzalez Ag., Inc. (ROGELIO TRIGUEROS, Applicant v. GONZALEZ AG, INC.; STAR INSURANCE COMPANY, administered by MEADOWBROOK INSURANCE, Defendants, ADJ13190781 (Cal. W.C.A.B. Aug. 4, 2021)
In that case, the out-of-state insurance company mailed a qualifying delay notice from Missouri to California. Applicant’s attorney requested a panel on the 16th day from service of the delay notice. Defendant argued this was premature and the applicant attorney needed to wait for the 21st day since the delay notice was being mailed from outside of California. The trial Judge concluded that the panel was valid. On appeal, the WCAB found the panel was invalid, claiming 10 days needed to be added, as opposed to only 5 days. However, the Court of Appeals reversed that decision and agreed with the trial Judge. They specifically noted Rule 10605, subdivision (b), which states the only concerning address is the entity being served; and the location where any triggering mailing originates from is irrelevant.