ADJ18073365 — California WCAB decision

What the panel ordered

The Appeals Board granted the applicant's petition for reconsideration, rescinded the WCJ's Findings and Order dated November 9, 2023, and returned the matter to the trial level for further proceedings.

Applicant sought reconsideration of the WCJ's Findings and Order issued on November 9, 2023, challenging the timeliness of defendant's service of the PQME panel list and associated documents. The WCJ had found the service proper and denied replacement panel issuance. The Appeals Board granted reconsideration, rescinded the WCJ's order, and returned the matter for further proceedings.

Read the official decision →

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.

Reconsideration / removalApplicant prevailed

The WCJ did not address the applicant's assertion that the QME panel request lacked required supporting documentation and that the proof of service was questionable, leading to insufficient evidentiary findings. The Appeals Board found the record inadequate and granted reconsideration.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The QME panel request served on applicant's counsel did not include the required supporting documentation as per AD Rule 30(b)(1)(C).

Favours Applicant prevailed

This failure meant the WCJ did not have sufficient evidence to find proper service, leading to granting reconsideration.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

The strike letter dated September 7, 2023, was postmarked September 8, 2023, raising a rebuttable presumption about receipt and timely service.

Favours Applicant prevailed

This discrepancy undermined the WCJ's finding of timely service and supported reconsideration.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

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

Cal. Code Regs., tit. 8, § 30(b)(1)(C) requires that the party requesting a QME panel shall print and serve a paper copy of the online request, the panel list, and any supporting documentation upon the opposing party with proof of service within one working day after generating the QME panel list.

The WCJ found defendant properly served the PQME panel list per this regulation, but the Appeals Board found the record insufficient to confirm compliance due to lack of proof of service and disputed mailing dates.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

Lab. Code, § 5313

Lab. Code, § 5313 requires the WCJ to make and file findings upon all facts involved and serve a summary of evidence and reasons for determination.

The WCJ failed to address the applicant's assertion regarding missing supporting documentation and proof of service, leading to an incomplete record.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

Lab. Code, § 5815

Lab. Code, § 5815 requires determination of all issues presented and deems undetermined issues decided adversely to the party raising them.

The WCJ did not make findings on all issues framed at trial, necessitating reconsideration.

From the decision · page 5(Lab. Code, § 5815.) Taken together, sections 5313 and 5815 require the WCJ to "make and file findings upon all facts involved in the controversy" and to issue a corresponding award, order or decision that states the "reasons or grounds upon which the [court's] determination was made." (Lab. Code, § 5313, 5815; see also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) Here, the WCJ has not addressed applicant's assertion that the QME panel request that was served on applicant's counsel did not include the supporting documentation required by AD Rule 30(b)(1)(A)-(B), as required by AD Rule 30(b)(1)(C). Nor did the WCJ address the fact that defendant's correspondence striking Richard Rogachefsky, M.D. from the QME panel (strike letter) is dated September 7, 2023, and the proof of service of the letter is dated September 7, 2023 (Exhibit C), but the envelope received by applicant's attorney bears a postage stamp dated September 8, 2023. (Exhibit 1.) The presumption that a letter mailed was received is rebuttable. (Suon v.

ADJ18073365 · January 12, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page