ADJ17366311 · January 8, 2024

The panel was invalidated because defendant failed to properly serve the required documents by mail as mandated by AD Rule 30(b)(1)(C), causing substantial prejudice to applicant.

From the decision · page 4In circumstances such as this, where a party has failed to comply with the required rules of service for panel QME requests and omitted required documents, we conclude that the procurement of Panel #7578289 was not proper and is therefore invalid, and that, absent removal, applicant will suffer substantial prejudice and irreparable harm. Thus, reconsideration is hereby granted and we find that Panel #7578289 is invalidated for failure to comply with Rule 30(b)(1)(C). We will otherwise affirm the findings of fact determined by the WCJ.

Defendant served QME panel list only via fax and email, omitting required paper copies and supporting documents by mail as required by AD Rule 30(b)(1)(C).

Favours Applicant prevailed

This failure to properly serve the required documents invalidated the QME panel and caused substantial prejudice to applicant.

From the decision · page 4In this case, the proof of service shows that defendant served applicant's attorney with the QME panel list via fax and email. However, by providing only the panel list, defendant failed to serve applicant's attorney with the remaining documents required by AD Rule 30(b)(1)(C), namely, a paper copy of the online panel request and any supporting documentation.

Cal. Code Regs., tit. 8, 30(b)(1)(C)

AD Rule 30(b)(1)(C) requires serving a paper copy of the online QME panel request, panel list, and supporting documentation by mail within one working day.

Defendant failed to serve the required documents by mail, only served via fax and email, invalidating the panel.

From the decision · page 3Applicant asserts that Panel #7578289 is invalid because it was not properly served upon applicant's attorney in accordance with AD Rule 30(b)(1)(C) (Cal. Code Regs., tit. 8, § 30(b)(1)(C)). AD Rule 30 provides as follows in relevant part that when a represented party requests a QME panel:

Lab. Code, 5900(a), 5902, 5903

Petition for reconsideration may be taken only from a final order that determines substantive rights or threshold issues fundamental to the claim.

The WCJ's decision included threshold issues making it a final order subject to reconsideration.

From the decision · page 2DISCUSSION A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (Maranian) (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment (AOE/COE), jurisdiction, the existence of an employment relationship, and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases

Defendant served QME panel list only via fax and email, omitting required paper copies and supporting documents by mail.

From the decision · page 4In this case, the proof of service shows that defendant served applicant's attorney with the QME panel list via fax and email. However, by providing only the panel list, defendant failed to serve applicant's attorney with the remaining documents required by AD Rule 30(b)(1)(C), namely, a paper copy of the online panel request and any supporting documentation.