Workers Comp Zone


If a lawyer or claimant hire a medical expert to write a report at their own expense challenging the report of a QME or AME, is that report admissible?

That was the issue in Batten v. WCAB (2015) 241 Cal.App.4th 1009 (Batten). In that case an AME had determined that a psyche injury was not compensable because it did not meet the threshold for causation, i.e. 51% caused by industrial factors.

In Batten, the applicant attorney obtained a report from another examiner at his own expense. That report found that the threshold of industrial causation had been met. The consulting examiner’s report was thereafter shown to the AME and a vocational expert. Moreover, it was admitted into evidence by the workers’ comp judge. In turn, the judge relied on the consulting doctor’s report in finding a compensable psyche work injury.

But the WCAB panel reversed, finding the report inadmissible.

On appeal, the California Court of Appeal 2nd District (Division 6) held that the admission of the rebuttal medical report obtained was barred by Labor Code section 4061(i) which includes the following language:

“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.”

The Batten court addressed the interaction of Labor Code 4605 with the QME statues. Labor Code 4605 specifies that

“Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

The Batten court notes that treating physician reports obtained under 4605 would be admissible under 4061(i), but not reports by a consulting physician whose report was obtained for rebutting the AME.

But some two years after Batten we have the case of Theodore Davis v. WCAB and City of Modesto, a decision rendered in March 2017 that is “not to be published” (see link to the decision at the bottom of this post).

Mr. Davis, a firefighter, claimed that his prostate cancer was industrial but the PQME rendered an opinion that it was not. Davis then hired (at his own expense) an internist who prepared a report that was forwarded to the PQME. The employer objected, and the workers’ comp judge  held that the report was not admissible, but could be read and commented on by the PQME.

The matter was appealed by the employer to the WCAB, which rescinded the decision that the consulting report could be reviewed by the PQME.

So then it was the worker’s turn to appeal. The WCAB  denied the appeal, but according to the Davis court “did not elaborate on Batten or section 4605’s relevance to the current matter.” When Davis appealed to the Court of Appeal the WCAB filed a response agreeing that it failed to address section 4605. The WCAB asked that the Court send the case back for further WCAB consideration.

Rather than addressing the merits of the worker’s arguments, the Davis court remanded the matter to the WCAB on the basis that the WCAB failed to set forth its reasoning in adequate detail.