What the panel ordered
The WCAB rescinded the February 25, 2022 Findings of Fact and Orders and substituted its Opinion and Decision After Reconsideration, affirming that defendant's strike of Dr. Mahmoudi was timely and denying the petition for reconsideration.
Applicant sought reconsideration of the WCJ's Findings of Fact and Orders issued February 25, 2022, regarding the timeliness of the strike of Dr. Massoud Mahmoudi from the QME panel.
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.
The Appeals Board agreed with the WCJ that defendant's strike of Dr. Mahmoudi was timely and that applicant did not show substantial prejudice or irreparable harm from the strike being upheld.
From the decision · page 5FINDINGS OF FACT 1. That the Applicant who was 47 years old as of the date of injury, as a retail clerk, at Livermore, California, by Ralph Lauren, claims to have sustained injury arising out of and occurring in the course of employment to her nervous system, back, spine, cardiovascular. 2. At the time of the injury, the employer's workers' compensation carrier was Safety National Casualty Corp. 3. Defendant has demonstrated panel #7411683 was not received. 4. Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely. ORDER a) Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant demonstrated that the internal medicine QME panel #7411683 was not received by defendant's counsel.
Favours Defendant prevailed
This supported the timeliness of defendant's strike of Dr. Mahmoudi from the panel.
From the decision · page 5FINDINGS OF FACT 1. That the Applicant who was 47 years old as of the date of injury, as a retail clerk, at Livermore, California, by Ralph Lauren, claims to have sustained injury arising out of and occurring in the course of employment to her nervous system, back, spine, cardiovascular. 2. At the time of the injury, the employer's workers' compensation carrier was Safety National Casualty Corp. 3. Defendant has demonstrated panel #7411683 was not received. 4. Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely. ORDER a) Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely.
Applicant's attorney served the internal medicine QME panel on May 13, 2021, but defendant's counsel requested copies multiple times indicating non-receipt.
Favours Defendant prevailed
This showed a dispute over the timeliness of service and supported the finding that the strike was timely.
From the decision · page 2BACKGROUND Applicant claimed injury to her back, psyche, and circulatory system, while employed by defendant as a retail clerk on November 4, 2017 (ADJ11973646). She also claimed injury to her back, psyche, and circulatory system, while employed by defendant during the period from September 3, 2017, through September 3, 2018 (ADJ11973645); and to her back/spine, nervous system, and cardiovascular system, while employed by defendant during the period from September 2, 2017, through September 2, 2018 (ADJ11973644). Applicant's attorney requested an internal medicine Qualified Medical Evaluator Panel and the Division of Workers' Compensation Medical Unit issued Panel #7411683 on May 13, 2021. (See App. Exh. 1.) On May 13, 2021, applicant's attorney's staff administrator (Marilyn Mora) served defendant's counsel the internal medicine Panel #7411683. (See App. Exh.1 p. 6 and App.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Defendant struck Dr. Mahmoudi from the internal medicine QME panel, disputing the timeliness of the panel service and strike.
The dispute centered on whether the internal medicine QME panel was timely served and whether the strike of Dr. Mahmoudi was timely.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Orders (F&O) issued by the workers' compensation administrative law judge (WCJ) on February 25, 2022, wherein the WCJ found in pertinent part that applicant, while employed by defendant as a retail clerk, claimed injury arising out of and occurring in the course of employment, to her back/spine, nervous system, and cardiovascular system; that defendant did not receive the Internal Medicine Qualified Medical Examiner Panel #7411683, served by applicant's counsel; and that defendant's strike of Massoud Mahmoudi, D.O., from Panel #7411683 was timely.
Dr. Mahawar was the remaining doctor on the internal medicine QME panel after Dr. Mahmoudi was struck.
Dr. Mahawar was scheduled for the panel Qualified Medical Evaluation after the strike of Dr. Mahmoudi.
From the decision · page 2Consistent with the provisions outlined in Labor Code § 4062.2, Defendant hereby strikes Massoud Mahmoudi, D.O. from Panel and we will now be scheduling a Panel Qualified Medical Evaluation with the remaining doctor, Suresh Mahawar, M.D. An appointment letter will be sent out under separate cover. (Def. Exh. J.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, §10955(a)
Removal is an extraordinary remedy rarely exercised by the Appeals Board and will be granted only if the petitioner shows substantial prejudice or irreparable harm if removal is not granted.
The Appeals Board applied this standard to deny removal and uphold the timeliness of the strike.
From the decision · page 3However, if the petitioner challenging a hybrid decision only disputes the WCJ's determination regarding interlocutory issues, then the Appeals Board will evaluate the issues raised by the petition under the removal standard applicable to non-final decisions. Here, although applicant's Petition is in regard to an interlocutory discovery issue, the F&O resolves the threshold issue of the existence of an employment relationship. It is therefore appropriate that applicant seeks reconsideration, and we will address the issues raised in the Petition by utilizing the applicable removal standard. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the
Labor Code §4062.2
Labor Code §4062.2 allows a defendant to strike a QME panel member under certain conditions.
Defendant relied on this statute to strike Dr. Mahmoudi from the internal medicine QME panel.
From the decision · page 2Consistent with the provisions outlined in Labor Code § 4062.2, Defendant hereby strikes Massoud Mahmoudi, D.O. from Panel and we will now be scheduling a Panel Qualified Medical Evaluation with the remaining doctor, Suresh Mahawar, M.D. An appointment letter will be sent out under separate cover. (Def. Exh. J.)
What proof carried it
The evidence the panel weighed, by kind.
The record showed defendant did not receive the internal medicine QME panel #7411683, supporting the timeliness of the strike.
From the decision · page 5FINDINGS OF FACT 1. That the Applicant who was 47 years old as of the date of injury, as a retail clerk, at Livermore, California, by Ralph Lauren, claims to have sustained injury arising out of and occurring in the course of employment to her nervous system, back, spine, cardiovascular. 2. At the time of the injury, the employer's workers' compensation carrier was Safety National Casualty Corp. 3. Defendant has demonstrated panel #7411683 was not received. 4. Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely. ORDER a) Defendant's strike of Dr. Mahmoudi from panel #7411683 was timely.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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