MESSELE

It may not turn out to be that big of a deal.

But recently there has been a lot of commentary in the comp community on the effects of the recent WCAB Messele en banc decision, known as Tsegay Messele v. Pitco Foods:
http://www.dir.ca.gov/wcab/EnBancdecisi … Tsegay.pdf

Non-lawyers will find the decision to be of the “how many angels can dance on the head of a pin” variety.

At first blush it would appear that the Messele decision would have little importance in the comp system. It clarifies how long parties must wait after offering an AME before they can request a panel QME.

That’s an issue that affects mainly those cases where the lawyer believes it’s important to “win the race” to pick the medical specialty of the QME. And not all lawyers would agree that it’s even that important to “win the race” to control the type of doctor who does the evaluation, although some lawyers swear by this strategy.

The decision simply clarifies the procedures and time frames under the DWC’s QME process. That’s to everyone’s benefit to have a more transparent process.

But what’s got many stakeholders and commentators atwitter?

It turns out that the Messele decision may be applied retroactively. And if so, some QME reports may be invalid. Doctors might not be paid for evaluations done and reports rendered. Parties might be entitled to another QME panel.

As you can imagine, this might prove to be a strategic advantage to some parties who are unhappy with a QME report if they can demonstrate that the party requesting the panel did not wait until the 16th day from the AME proposal.

Yet, if there are lots of such cases (the number of which is unknown), the system could get further bogged down.

Here is the text of a DWC “Newsline” issued on October 27, 2011 setting forth how the DWC plans to deal with the issue:
“The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Messele v. Pitco Foods Inc. Cal. Wrk. Comp. LEXIS 144, on Sept. 27, 2011. The decision concerns the number of days the parties in a represented case must wait after an agreed medical evaluator (AME) proposal is mailed before requesting a qualified medical evaluator (QME) panel from the Medical Unit. In Messele v. Pitco Foods the WCAB held (1) when the first written AME proposal is mailed or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; and (2), the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.”

The DWC announcement says that :
“Effective immediately, the Medical Unit will only issue panels that comply with the holding in Messele v. Pitco Foods Inc. In reviewing panel requests currently on file, if a panel request is found by the Medical Unit to have been filed prematurely, the unit will send a letter to the parties indicating their request will not be filled because it was filed prematurely pursuant to Messele v. Pitco Foods.”

“Panels that were previously issued, where the panel request was filed with the Medical Unit prematurely pursuant to Messele v. Pitco Foods, will be handled in the following manner:”

“Where a panel was issued and a QME evaluation was conducted by a doctor selected from the panel the parties should seek a court order from a workers’ compensation judge indicating that the medical evaluation was improperly procured under Messele v. Pitco Foods Inc. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced (The panel number appears on the list of QME’s previously sent)
A copy of the order issued by the board
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
Where a panel was issued but no QME evaluation was conducted, the Medical Unit will issue a new panel if a filer establishes the panel request complies with Messele v. Pitco Foods. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
In the cover letter indicate the number of the prior panel that is being replaced. (The panel number appears on the list of QME’s previously sent.)
In the cover letter please indicate the date of service of the original AME offer letter and the date of service of the original form 106
A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
In these circumstances, the Medical Unit is requesting filers to provide additional information beyond what would ordinarily be required to issue a QME panel to facilitate the panel process.”

As part of the DWC Newsline there is a “practice pointer”:

“To facilitate the review process at the Medical Unit and beyond, clearly indicate the nature of the dispute for which you are requesting a panel in the AME proposal letter or the cover letter that sometimes accompanies the panel request to the Medical Unit.”

“The WCAB points out in footnote 11 of the decision “[a]lthough Labor Code section 4062.2(b) may not explicitly require “service” of the AME proposal, the wise practitioner will avoid any doubt as to when the first written proposal was “made” by including proof of service. (See Cal. Code Regs., tit. 8, § 10505.) Adhering to the WCAB recommendation about the AME proposal letter will help speed the review process and reduce disputes that need to be resolved.”

In closing the DWC notes that :
“It is strongly recommended that litigants refrain from filing objections to the panel requests currently on file with the Medical Unit or from sending letters asking to withdraw a panel request that has been filed but not filled, except as specified above. Finally, do not file correspondence with the Medical Unit where the unit is merely being copied on the correspondence. Unnecessary correspondence detracts the processing of panel requests.”

CAAA is apparently asking the WCAB to clarify Messele, making it prospective only.

That would certainly make it easier on the system. But meanwhile, in some cases applicants and defendants may identify cases where they are unhappy with panel QMEs and comb through AME offer letters, panel request letter and calendars.

Perhaps its time to junk the entire QME system anyway.

With requests to assign QMEs continually backed up at the DWC Medical Unit and disputes festering because of delays in the cumbersome system, the system is creaky at best.

There has to be a better way.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Category: QME process