Elmira Smith vs. Pacific Autism Center For Education, Permissibly Self-insured, Administered By Tri-star Risk Management

This case is about a worker, Elmira Smith, who was injured while employed by Pacific Autism Center for Education on August 17 and August 20, 2009. Smith's attorney requested a qualified medical evaluator (QME) panel in the specialty of chiropractics, which was issued on July 14, 2010. The Medical Unit also issued a second panel, #1165859, on July 28, 2010 in the specialty of orthopedics. Both parties took the precaution of striking members of each panel. The WCJ found that the panel issued in response to defendant's request was the properly assigned panel. The Appeals Board granted applicant's Petition for Removal, rescinded the WCJ's Finding of Fact, and found that neither panel was properly assigned

Pacific Autism Center For Education, Permissibly Self-Insured, administered by Tri-Star Risk Management Elmira Smith WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAELMIRA SMITH, Applicant,vs.PACIFIC AUTISM CENTER FOR EDUCATION, Permissibly Self-Insured, administered by TRI- STAR RISK MANAGEMENT, Defendants.Case Nos. ADJ7199986ADJ7399845OPINION AND ORDER GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL            Applicant seeks removal under Labor Code section 5310 and requests that we rescind the Finding of Fact issued by a workers’ compensation administrative law judge (WCJ) on April 28, 2011, in which the WCJ found that the properly assigned qualified medical evaluator (QME) panel in this case is Panel Number 1165859 (the panel requested by defendant)            Applicant contends that the WCJ erred in finding QME Panel Number 1165859 to be the properly assigned panel, arguing that her request for assignment of a QME panel followed exactly the timeline set forth in Labor Code section 4062.2(b)1, that the WCJ’s decision is inconsistent with the decision in Alvarado v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1142 (writ den.), and that Code of Civil Procedure (CCP) section 1013 does not, and should not be implied to, apply to the specific statutory scheme of section 4062.2.            We have considered the Petition for Removal, the Answer filed by defendant, and the WCJ’s Report and Recommendation on Petition for Removal (Report).            Based upon our review of the record and for the reasons discussed below, we will grant applicant’s Petition for Removal, rescind the WCJ’s Finding of Fact, and find that neither panel was properly assigned because both panel requests were premature. 1            All further statutory references are to the Labor Code. ,             The WCJ summarized the background of this case at page 2 of his Report: “Applicant Elmira Smith, while employed by Pacific Autism Center for Education on August 17 and Augu

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