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Striking a Qualified Medical Evaluator and the Mailbox Rule Revisited

Posted by Sure S. Log on Jan 18, 2023 9:00:00 AM

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, 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." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

Under the current process, however, the parties do not receive the QME panel at the same time. QME panel requests must be submitted electronically via the Division of Workers' Compensation website. After the request online, the panel is generated automatically. Within one working day, the requesting party is required to serve a copy of the panel and any supporting documentation with a proof of service.

The party requesting the panel frequently receives it immediately or shortly after submitting the request. The other party receives it only after being served by the requesting party. So, must each party issue a strike by the same day?

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Topics: QME, Striking, Mailbox Rule, CCR 10607, LC 4062.2