ADJ10961264 — California WCAB decision

What the panel ordered

Joint Findings, Order Vacating Submission and Orders Developing the Record issued by the WCJ on December 2, 2024 is rescinded; matter returned to trial level for further proceedings.

Defendant sought removal of the WCJ's order striking QME Patchett's report and ordering additional QME panels; Board granted reconsideration, rescinded the order, and remanded for further proceedings.

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This docket was decided more than once. Shown here is the latest released decision; we also hold March 3, 2025.

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.

QME/AME processRemandedhead

Applicant's head injury was pled; prior neurologist did not address causation or head injury; Board found evidentiary basis for additional neurology panel.

From the decision · page 10IV. We also address defendant's contention that the order for an additional panel in neurology was made in error because neither headaches nor neurological system problems were alleged by applicant and because the report of the prior neurologist Dr. Kent provides no good cause for ordering an additional panel in neurology. (Petition, at pp. 5-7.) In the Report, the WCJ explained that defendant is incorrect, and "in fact the head has been a pled body part claimed to have been injured since the first amendment to the CT claim." (Report, at p. 3.) The WCJ explained: Dr. Kent performed numerous electro-diagnostic tests and issued his results. He reported on the specific injury only, he never addressed causation for the CT or the specific injury. He never addressed the head. He never addressed TTD, PD, future medical treatment, or apportionment, he only reported his findings. As the applicant had not been to a PQME in Neurology, and an unopposed petition was filed for a neurological PQME the court found the record needed to be developed on the injury to the head and ordered PQME in Neurology. This evaluation will determine if there is an injury to the head or what symptoms the applicant has, headaches, and what the cause is. This evaluation is needed to complete the record.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

WCJ struck Dr. Patchett's report for noncompliance with section 4628 without providing notice or opportunity to cure.

Favours Defendant prevailed

Board found this violated due process and rescinded the order, remanding for proper notice and opportunity to cure.

From the decision · page 6Here, applicant's petition to strike Dr. Patchett's reporting did not raise the issue of section 4628 compliance, nor was section 4628 listed as a trial issue in the June 18, 2024 pretrial conference statement. (Petition to Strike, served May 15, 2024; Pre-trial Conference Statement, filed June 18, 2024.) Although the September 14, 2024 minutes of hearing indicate that one of the issues for trial was "Applicant's petition to strike the medical reports of Dr. Ross and Dr. Patchett," the minutes did not state, specifically, that the WCJ would be make that determination pursuant to section 4628. (Corrected Minutes of Hearing, served September 19, 2024; see also, Cal. Code Regs., tit. 8, § 10787(c)(3) [MOH must include "the issues and matters in controversy"].) Compliance with section 4628 was raised, for the first time, in the Opinion on Decision issued on December 2, 2024. (Opinion, at pp. 4-6.) Thus, there was no notice to any party that section 4628 would be considered by the WCJ or that it would be relied upon by the WCJ as the basis for finding Dr. Patchett's reporting inadmissible. Dr. Patchett, specifically, was not provided with notice that his reporting could be stricken pursuant to section 4628, and as a result, had no opportunity to be heard on that issue before the order striking his reporting issued.

Applicant's head injury was pled and not addressed by prior neurologist; evidentiary basis for additional neurology panel.

Favours Applicant prevailed

Supported Board's finding that order for additional neurology panel was justified.

From the decision · page 10IV. We also address defendant's contention that the order for an additional panel in neurology was made in error because neither headaches nor neurological system problems were alleged by applicant and because the report of the prior neurologist Dr. Kent provides no good cause for ordering an additional panel in neurology. (Petition, at pp. 5-7.) In the Report, the WCJ explained that defendant is incorrect, and "in fact the head has been a pled body part claimed to have been injured since the first amendment to the CT claim." (Report, at p. 3.) The WCJ explained: Dr. Kent performed numerous electro-diagnostic tests and issued his results. He reported on the specific injury only, he never addressed causation for the CT or the specific injury. He never addressed the head. He never addressed TTD, PD, future medical treatment, or apportionment, he only reported his findings. As the applicant had not been to a PQME in Neurology, and an unopposed petition was filed for a neurological PQME the court found the record needed to be developed on the injury to the head and ordered PQME in Neurology. This evaluation will determine if there is an injury to the head or what symptoms the applicant has, headaches, and what the cause is. This evaluation is needed to complete the record.

WCJ's order for replacement internal medicine QME was made in error; Dr. Ross should re-evaluate after reviewing additional records.

Favours Defendant prevailed

Board directed correction of this error on remand.

From the decision · page 11V. Lastly, we agree with defendant's contention that there was no need for an additional internal medicine panel, when Dr. Ross's report is substantial medical evidence. (Petition, at pp. 7-8.) The WCJ indicated that the order for a replacement panel QME in internal medicine was made in error. (Report, at p. 6.) The WCJ explained that his intention was for Dr. Ross to re- evaluate applicant after reviewing applicant's medication records, echocardiogram, and job analysis. (Ibid.) Upon return, this inadvertent order should be corrected. Accordingly, as our Decision After Reconsideration, we rescind the December 2, 2024 F&O and return this matter to the trial level for further proceedings consistent with this decision.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code § 4628

Labor Code § 4628 requires the physician to personally conduct the examination, disclose the names and qualifications of anyone performing services, and sign the report under penalty of perjury; failure to comply renders the report inadmissible.

WCJ found Dr. Patchett's report inadmissible for noncompliance; Board held due process requires notice and opportunity to cure before striking report.

From the decision · page 5Section 4628 describes mandatory requirements for any physician signing a medical legal report including requirements that the physician personally conduct the examination; that the date and location of the evaluation be disclosed; that the evaluation comply with applicable laws; that the evaluation disclose the name and qualifications of any person who performed services, other than clerical services, in connection with the report; that the report describe in detail any variances with these procedures; and that the physician sign the report with a declaration under penalty of perjury that the contents of the report are true and correct. (Lab. Code, § 4628(a), (b), (j).) It requires the patient history and excerpting of medical records must be completed by the physician, or the physician must review the history and excerpts and must "make additional inquires and examinations" as necessary. (Lab. Code, § 4628(c).)

Cal. Code Regs., tit. 8, § 10670(b)(4)

WCAB Rule 10670(b)(4) allows the Appeals Board to decline to receive a physician's report that does not comply with section 4628 unless good cause is shown and compliance is achieved after notice.

Board held that deficiencies under section 4628 may be curable if notice and opportunity to cure are provided.

From the decision · page 7II. In any matter in which a possible section 4628 deficiency is raised, the WCJ must determine if such a deficiency exists, and if so, whether the deficiency can be cured. Curing defects in medical-legal reporting furthers our constitutional mandate of expeditious resolution of claims and achieving substantial justice. (Cal. Const., art. XIV, § 4 [A complete system of workers' compensation serves "shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character"].) "Substantial justice" is an exhortation that the workers' compensation system must focus on the substance of justice, rather than on the arcana or minutiae of its administration. (See Lab. Code, § 4709 ["No informality in any proceeding... shall invalidate any order, decision, award, or rule made and filed as specified in this division."].) WCAB Rule 10670, subdivision (b)(4), provides that the Appeals Board may decline to receive in evidence any physician's report that does not comply with section 4628 "unless good cause has been shown for the failure to comply and, after notice of non-compliance, compliance takes place within a reasonable period of time or within a time prescribed by the workers' compensation judge." (Cal. Code Regs., tit. 8, § 10670(b)(4).) Thus, Rule 10670 provides a mechanism for section 4628 compliance deficiencies to be cured.

ADJ10961264 · November 7, 2025

What the panel ordered

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