What the panel ordered
Petition for Reconsideration granted; WCJ's Findings and Order affirmed except amended to find QME Panel number 7480460 invalid; parties to proceed with Panel number 7483530.
Petition for Reconsideration filed by applicant challenging validity of QME Panel number 7480460; WCJ issued Findings of Fact and Order on December 2, 2022; WCAB granted reconsideration and issued Decision After Reconsideration on February 28, 2023.
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.
Panel number 7480460 was found invalid because defendant did not serve applicant's attorney with the denial letter as required by Labor Code section 4062.2 and AD Rule 30(b), depriving applicant's attorney of due process and opportunity to object.
From the decision · page 5While the Answer to the Application was properly served by the defendant, and applicant's attorney may have been aware that defendant denied injury as a result, the Answer did not include a "request for a medical evaluation pursuant to Section 4060" as required by section 4062.2 and AD Rule 30(b). As part of defendant's Exhibit B, the panel "packet," defendant included its denial letter of March 10, 2022, but this letter was not served on applicant's attorney as required by section 4062.2(b). Accordingly, applicant's attorney was not afforded due process by way of an opportunity to object, as set forth under section 4062.2(b). "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537]. Therefore, Panel number 780460 is invalid.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not serve applicant's attorney with the denial letter of March 10, 2022, attached to the panel request.
Favours Applicant prevailed
This failure deprived applicant's attorney of due process and opportunity to object to the QME panel request, rendering Panel number 7480460 invalid.
From the decision · page 5While the Answer to the Application was properly served by the defendant, and applicant's attorney may have been aware that defendant denied injury as a result, the Answer did not include a "request for a medical evaluation pursuant to Section 4060" as required by section 4062.2 and AD Rule 30(b). As part of defendant's Exhibit B, the panel "packet," defendant included its denial letter of March 10, 2022, but this letter was not served on applicant's attorney as required by section 4062.2(b). Accordingly, applicant's attorney was not afforded due process by way of an opportunity to object, as set forth under section 4062.2(b). "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537]. Therefore, Panel number 780460 is invalid.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Applicant's attorney struck Dr. Ersno Eromo from the QME Panel 7480460 list due to objection to the panel's validity.
Applicant's attorney objected to the panel and struck Dr. Ersno Eromo from the panel list.
From the decision · page 2Please note that this office objects to the issuance of this Panel as being invalid due to being improperly requested. Please be further advised that the applicant will not attend any Panel QME evaluation from the orthopedic Panel until this matter is fully litigated in the courts. Without waiving our objection, we strike Dr. Ersno Eromo from the list.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code
Labor Code section 4062.2
Requires proper service of denial letter to applicant's attorney before requesting QME panel in represented cases.
From the decision · page 5While the Answer to the Application was properly served by the defendant, and applicant's attorney may have been aware that defendant denied injury as a result, the Answer did not include a "request for a medical evaluation pursuant to Section 4060" as required by section 4062.2 and AD Rule 30(b). As part of defendant's Exhibit B, the panel "packet," defendant included its denial letter of March 10, 2022, but this letter was not served on applicant's attorney as required by section 4062.2(b). Accordingly, applicant's attorney was not afforded due process by way of an opportunity to object, as set forth under section 4062.2(b). "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537]. Therefore, Panel number 780460 is invalid.
Cal. Code Regs., tit. 8, 30(b)
Administrative Director Rule 30(b)
Requires service of denial letter and opportunity to object before QME panel request.
From the decision · page 5While the Answer to the Application was properly served by the defendant, and applicant's attorney may have been aware that defendant denied injury as a result, the Answer did not include a "request for a medical evaluation pursuant to Section 4060" as required by section 4062.2 and AD Rule 30(b). As part of defendant's Exhibit B, the panel "packet," defendant included its denial letter of March 10, 2022, but this letter was not served on applicant's attorney as required by section 4062.2(b). Accordingly, applicant's attorney was not afforded due process by way of an opportunity to object, as set forth under section 4062.2(b). "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537]. Therefore, Panel number 780460 is invalid.
What proof carried it
The evidence the panel weighed, by kind.
Defendant did not serve applicant's attorney with the denial letter of March 10, 2022, attached to the panel request.
From the decision · page 5While the Answer to the Application was properly served by the defendant, and applicant's attorney may have been aware that defendant denied injury as a result, the Answer did not include a "request for a medical evaluation pursuant to Section 4060" as required by section 4062.2 and AD Rule 30(b). As part of defendant's Exhibit B, the panel "packet," defendant included its denial letter of March 10, 2022, but this letter was not served on applicant's attorney as required by section 4062.2(b). Accordingly, applicant's attorney was not afforded due process by way of an opportunity to object, as set forth under section 4062.2(b). "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537]. Therefore, Panel number 780460 is invalid.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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