Tsegay Messele

In this en banc decision, the WCAB addressed the prospective application of its September 26, 2011 decision in Messele v. Pitco Foods, which had clarified the timeline for selecting an AME and requesting a QME panel under Labor Code section 4062.2(b). The Board had held that when the first written AME proposal is made by mail (or other non-personal service) the period for seeking agreement is extended five calendar days if the served party's address is within California, and that the section 4062.2(b) timeline starts the day after the date of the first written proposal and includes the last day. Recognizing that its prior decision created confusion about ongoing proceedings and risked a 'landslide of reopenings,' the Board issued a notice of intention to make the principles apply prospectively from September 26, 2011, and received no opposing comments. The Board amended its prior decision to provide that panels prematurely but otherwise properly requested before September 26, 2011, where no prematurity objection was raised, may not later be challenged on that ground. The Board affirmed its September 26, 2011 decision as amended.