Workers Comp Zone


Seeking to plug the dike to prevent a deluge of litigation, the WCAB has issued another en banc in the Messele case.

Let’s call it Messele Dos.

After the recent Messele Uno case, the workers’ comp community has been rife with commentary about whether prior panel QME appointments might have been procedurally invalid and subject to challenge.

The Division of Workers’ Compensation took this seriously enough to publish an advisory newline on the subject, outlying its position on how challenges to previously issued QME panels would be handled.

The WCAB has responded. In a unanimous opinion, the WCAB has announced its intent to modify Messele Uno. Unless persuaded otherwise by written comments within the next several weeks, Messele Uno will be prospective only.

Challenges to QME panels on the basis of prematurity filed before Messele Uno (i.e. before September 26, 2011) could still be maintained. But the Appeals Board clearly wishes to avoid a “landslide of reopening”. Therefore, the WCAB notes that …”our September 26, 2011 decision would not constitute good cause to reopen any order, decision, or award.”

Among those who called for Messele Uno to be prospective only was the CAAA amicus committee.

Although some particular claimant might seek to have the decision applied retroactively, the realities of the system make Messele Dos good policy.

Julius Young

Category: QME process