Workers Comp Zone


The California Court  of Appeal has now rendered a decision in a closely watched case, Margaret Batten v. WCAB and Long Beach Memorial Hospital.

The central question in the case was whether California’s QME process statutes permit the admission into evidence of a non-treating physician report obtained by an applicant. 

In Batten the applicant, represented by prominent San Luis Obispo-area attorney William Herreras, obtained a report at her own expense after a psychiatric AME rendered a report opining that the threshold for industrial psyche injury causation had not been met. The WCJ allowed the applicant to obtain a report from a physician who determined that the causation of the psyche injury was more than 51% industrial. The consultant was deposed by the employer’s attorney and reviewed by the AME who issued a supplemental report commenting on the consultant’s report.

The trial judge admitted the consultant’s report into evidence. Thereafter, the WCJ followed the opinion of Batten’s consultant, ruling that the injury was industrial.

On appeal, a WCAB panel rejected the WCJ’s finding, ruling that the consultant’s report was not admissible under the post SB 863 QME process statutes. Batten then filed a writ of review.

The opinion of the Court of Appeals 2nd District (Justices Yegan, Gilbert and Perren) affirms the decision of the WCAB panel.

The court concludes that:

“Section 4061, subdivision (i) prohibits the admission of privately retained reports, unless they are prepared by a treating physician. Section 4061, subdivision (i) precludes admission of an independently retained expert opinion as follows: “With the exception of an evaluation or evaluations prepared by the treating physician or physicians, no evaluation of permanent impairment and limitations resulting from the injury shall be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be admissible in any proceeding before the appeals board.”

Moreover, they note that:

“Section 4605 permits the admission of a report by a consulting or attending physician, and section 4061, subdivision (i) permits the admission of an evaluation prepared by a treating physician. Neither section permits the admission of a report by an expert who is retained solely for the purpose of rebutting the opinion of the agreed medical expert’s opinion.”

This case had been of some concern to some in the employer community who feared that a win by Batten might open the gates to circumvent the QME process. Batten’s attorney had argued that the report should come in since the defendant obtained a rebuttal report form the AME commenting on the consultant’s report.

Here is a link to the decision:


Julius Young