Trigueros v. Workers' Compensation Appeals Bd. CA5

Filed 3/30/22 Trigueros v. Workers’ Compensation Appeals Bd. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

ROGELIO TRIGUEROS, F083323 Petitioner, (WCAB No. ADJ13190781) v.

WORKERS’ COMPENSATION APPEALS OPINION BOARD and GONZALEZ AG, INC. et al.,

Respondents.

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Deidra E. Lowe and Craig Snellings, Commissioners, and Anne Schmitz, Deputy Commissioner. Marilen Zinner, Workers’ Compensation Administrative Law Judge. Law Offices of Sef Krell and Sef Krell for Petitioner. Allison J. Fairchild for Respondent Workers’ Compensation Appeals Board. No appearance for Respondents Gonzalez Ag, Inc. and Star Insurance Company. -ooOoo-

______________________ * Before Detjen, Acting P.J., Smith, J. and Snauffer, J.

BACKGROUND In April 2020, petitioner Rogelio Trigueros filed a claim for workers’ compensation benefits claiming injury to his upper extremities, shoulders, arms, hand and fingers through February 19, 2020, while employed as a farm laborer for respondent Gonzalez Ag., Inc. (employer). On May 4, 2020, employer’s insurance carrier mailed a Notice Regarding Delay of Workers’ Compensation Benefits from Kansas City, Missouri, to petitioner in California. Sixteen days later, petitioner requested and obtained a panel of three chiropractic Qualified Medical Evaluators (QME panel) eligible to evaluate petitioner’s workers’ compensation claim pursuant to Labor Code sections 4060, subdivision (c) and 4062.2, subdivision (b).1 Employer challenged the timing of petitioner’s request for a QME panel and the matter proceeded to trial, resulting in the workers’ compensation administrative law judge (WCJ) concluding the panel was valid. Employer petitioned the WCAB for removal of the WCJ, which the WCAB subsequently deemed a petition for reconsideration. Employer argued it suffered significant prejudice because the WCJ’s ruling deprived it of its opportunity to request the medical specialty by allowing petitioner to request a QME panel after only 16 days from the mailing of the delay notice from out of state, rather than adding 10 additional days to the minimum section 4062.2 10-day waiting period per the general mail delay extension provision under Code of Civil Procedure section 1013, subdivision (a) (CCP § 1013). In an August 4, 2021, Opinion and Decision after Reconsideration agreeing with employer, the WCAB replaced the WCJ’s finding with its own finding that the QME panel was invalid because petitioner prematurely requested it before waiting 20 days from mailing of the Delay Notice. In doing so, the WCAB stated it applied its