RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – SUFFICIENT PROOF OF SERVICE IN COVID TIMES AND MAN’S BEST FRIEND TO THE RESCUE
FROM MY BAR AT HOME:
Like Forrest Gump’s proverbial “box of chocolates” you never know what you’re going to get when you request a Qualified Medical Examiner (QME) panel. But I didn’t have to consult my Ouija Board when I saw the name Dr. Baloney pop up on a recent panel list. I quickly issued my “strike” by mail and email and breathed a sigh of relief.
The applicant attorney in my case, Newt Newbie, had already issued his strike and, not surprisingly, we were left with Dr. “Who the Heck Are You.” Several days later, I had just finished a run and was enjoying an enthusiastic welcome from my English springer spaniel, Max, when I turned on my laptop to check my mail.1
What’s this?! Newt had issued a second strike of Dr. “Who the Heck Are You,” meaning that Dr. Baloney would become our designated QME. He was claiming that I had not complied with statutory timeframes; that my strike was invalid. Surely, this was a mistake, so I immediately emailed the applicant attorney with another copy of my timely strike and assured Max that everything would be OK.
But it wasn’t. When I called Newt to clarify the situation, he said he had never received our mailed copy and further, although he had received my email strike in a timely manner, it was “procedurally deficient.”
“Procedurally what?!?” I exclaimed! “Yes, that’s right,” he said, “Procedurally. Deficient.” He then informed me that his office didn’t accept service by email.
I asked Newt if he was aware of the ongoing pandemic; that the WCAB had suspended service by mail, issuing an en banc decision in re: COVID-19, State of Emergency March 18, 2020?
Newt brushed aside my arguments and cited my failure to comply with the service requirements of Workers’ Compensation Appeals Board Rules of Practice and Procedure (Rules) in Title 8, Chapter 4.5, Subchapter 2, Article 9. Filing and Service of Documents Rule 10625 Service of the California Code of Regulations, specifically § (b)(4) and (b)(5), which read as follows:
(4) A party’s preferred method of service if a method has been designated in accordance with rule 10205.6; or
(5) Another method if the serving and receiving parties have previously agreed to some other method of service.
I told the young Mr. Newbie that first of all, we never had any prior notice of his “preferred method” or that his office didn’t accept service by email. Furthermore, although there had never been an agreement on another method of service, Rule 10625 section (3) allows for an “alternative method that will effect service that is equivalent to or more expeditious than first class mail.”
I asked what happened to the copy we had mailed to his office location. He reminded me that they never received it and asked if I had proof of service. When I said that I didn’t, the applicant attorney said that he’d “see” me in court. Clearly, Newt wasn’t budging from his “procedurally deficient” argument.
I had just hung up when Max jumped up, put his paws on my lap and gave me an instructive bark. What was Max trying to tell me?
Of course! File for an Expedited Hearing! (Max didn’t really bark—he’s no Lassie—but it makes for a better story.) So, I pulled out the DIR form that apparently originated with the discovery of fire, but saw that none of the checkable boxes fit my situation. Fortunately, however, California Labor Code §5502(b)(3) did, allowing for an Expedited Hearing for a medical treatment appointment or medical-legal examination. It states in relevant parts as follows:
(b) The administrative director shall establish a priority calendar for issues requiring an expedited hearing and decision. A hearing shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after the declaration of readiness to proceed is filed if the issues in dispute are any of the following, provided that if an expedited hearing is requested, no other issue may be heard until the medical provider network dispute is resolved:
(3) A medical treatment appointment or medical-legal examination.
I submitted my request for an Expedited Hearing. Regrettably, a few days later, I received more disturbing news. The QME exam with Dr. Baloney had been scheduled and our Expedited Hearing was set before a judge who was an absolute stranger to me. What next? A LinkedIn invite from Dr. Boloney?
It was then I realized there was only one answer: George the Bartender! So I rang up Joe Truce, my mentor and creator of George the Bartender, at his beach house and said, “Joe, I’m in big trouble and need help.” He told me to relax and asked, “How’s Max?” “Good,” I said, “but he’s still drinking out of the toilet.”
Joe and I exchanged gossip and complained about our time staying Safer at Home – he was displeased with the new rebooted version of Perry Mason. “I know,” I said, “It’s terrible. The
‘new’ Perry Mason isn’t even a lawyer!” Then again, I watched only the first episode. When we finally got around to my dilemma, I put myself in Joe’s hands.
First of all, Joe directed me to California Evidence Code §641 and explained that a letter correctly addressed and properly mailed is presumed to have been received, although the presumption is rebuttable. However, the applicant attorney’s mere allegation that he did not receive our mailed strike was insufficient to rebut the presumption.
The Workers’ Compensation Appeals Board (WCAB), Joe explained, could take evidence on whether my strike was received. If I could produce evidence that the document was mailed, the burden would shift to the opposing side to provide believable evidence to the contrary. Joe recommended I have my legal assistant file an affidavit under penalty of perjury that they placed my strike letter in the mail, addressed to the location of the applicant attorney’s firm.
Second, Joe drew my attention to Labor Code §4062.2 (c), which states that:
(c) Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within 10 days of assignment of the panel by the administrative director, the other party may select any physician who remains on the panel to serve as the medical evaluator. The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process.
As he read from his Labor Code, I realized that the section doesn’t indicate that the strike needs to be served with a proof of service, nor does it indicate the manner in which the strike should issue. Joe added that indeed, a phone call would appear to be sufficient to satisfy the statute or even skywriting—although he wouldn’t recommend it.
Last, and most importantly, Joe said there is no denial of due process when a party obtains actual notice of an action notwithstanding lack of proper service, pointing me to three decisions dealing with this very issue: Julie Garcia v. The Vons Company (2001) 66 CCC 362 (en banc); Patricia Nunez v. Mainstay Business Solutions, 2010 Cal. Wrk. Comp. P.D. Lexis 597 (panel decision, filed October 25, 2010); and Hartford Accident & Indem. Co. v. WCAB (1978) 86 Cal. App.3d 1; 43 CCC 1193.2 Quite simply, Joe added, once an applicant attorney had actual knowledge of your email strike, they had notice. And if they had notice, they had sufficient service.
Clearly, Joe was on a roll, chuckling that the applicant’s attorney also should have realized that “notice” is a two-way street. In other words, the fact that Newt never served me with prior “notice” that his office did not accept service by email was enough alone to sink his boat – if it was ever floating.
I ignored the mixed metaphor and thanked Joe. One more time Joe, not Grubhub, had delivered. Joe might have his Beefeater’s, but I was ready to break out the champagne! The game might not be in the refrigerator, as legendary Los Angeles Lakers’ announcer Chick Hearn would say, but it sure seemed like the Jello was jiggling. Now, if I could only get the judge on board and Max to focus on his water bowl. Stay tuned.
All characters at my home bar are fictional and the storyline is simply a product of my lively imagination.
Max is a clutch contributor when it comes to my Safer at Home legal practice. It’s important to realize where you stand in regard to sufficient service, especially in times like these where so many things are in flux and it can be hard to keep track of any new decisions or old decisions that may be beneficial to your defense.
While Garcia and Nunez lack the designation “significant panel decision,” Joe Truce always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We’re still making our own doubles for now. May George guide my hand. Bottoms up, friends, and keep washing your hands.
1 Thanks to our firm’s adaptation to a paperless file management system several years ago, all of our physical mail is now digitized.
2 A copy of Garcia, Nunez and Hartford can be obtained via email request.