ADJ11796055 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant challenging the Joint Findings and Order dated November 27, 2023, regarding injury AOE/COE and QME compliance with Labor Code section 4628.

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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.

AOE/COEDefendant prevailedleft shoulder

The cumulative trauma injury from June 13, 2017 to November 12, 2021 was stipulated by the parties and found by the court, making the finding final and not subject to reconsideration.

From the decision · page 2Here, the PWCJ's Joint Findings and Order (F&O) determines that applicant sustained injury arising out of and in the course of employment (AOE/COE) to her left shoulder on June 13, 2018, and also from June 13, 2017 to November 12, 2021. (Finding of Fact No. 1.) The determination of injury AOE/COE is a threshold order, subject to reconsideration. (Maranian, supra, 81 Cal.App.4th at p. 1075.)

QME/AME process

The facts that decided it

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

The parties stipulated to the cumulative trauma injury period from June 13, 2017 to November 12, 2021, and the court found this stipulation binding and final.

Favours Defendant prevailed

This stipulation rendered the finding of cumulative trauma injury final and not subject to reconsideration, supporting denial of reconsideration on this issue.

From the decision · page 6An earlier Expedited Hearing was held on January 10, 2022 on the sole issue of defendant's request for a new QME panel based on bias. At the Expedited Hearing, the parties stipulated that the applicant sustained a specific injury on June 13, 2018 (ADJ11796055) and a cumulative trauma during the period from June 13, 2017 through November 2, 2021 (ADJ15391752). (EAMS Doc. No. 77487736.)

Dr. Lee personally reviewed and verified the medical records and history, making necessary changes before finalizing the QME report.

Favours Defendant prevailed

This demonstrated compliance with Labor Code section 4628, leading to denial of the petition to strike Dr. Lee and denial of reconsideration on this issue.

From the decision · page 3Here, as the PWCJ notes in her Report, the QME has identified the personnel who assisted with the outline of the patient's history and excerpting of the records and has further described the process by which the QME personally reviews these excerpts. (Report, at pp. 4-5; Ex. 6, Report of Donald Lee, M.D., dated June 23, 2023, at p. 1.) The QME testified to reviewing the excerpted records side by side on a "split screen" with the underlying medical records in order to "compare the two to make sure that the summary is done accurately." (Report, at p. 5; Ex. 8, Transcript of the Deposition of Donald Lee, M.D., dated June 22, 2023, at p. 15:2.) The QME further testified that he personally reviews the history with the patient as part of the examination to ensure the record review is accurate. (Report, at p. 5.) Finally, the QME verified that he personally makes all necessary changes to the medical history and record review prior to the issuance of the final report. (Id.)

The rules the panel named

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

Labor Code sections 5900(a), 5902, 5903

A petition for reconsideration may only be taken from a 'final' order, decision, or award.

The court treated the PWCJ's threshold findings of injury AOE/COE and section 4628 determination as final orders subject to reconsideration.

From the decision · page 1A petition for reconsideration may only be taken from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order "determines any substantive right or liability of those involved in the case." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661].) If a decision includes resolution of a "threshold" issue, then it may also be a "final" decision whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650]; Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc); see Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Interlocutory procedural or evidentiary orders entered in the midst of workers' compensation proceedings are not considered "final" orders because they do not determine substantive rights or liabilities. (Maranian, supra, 81 Cal.App.4th

Labor Code section 4628(e)

Labor Code section 4628(e) makes a medical-legal report inadmissible if it fails to comply with the section's requirements and eliminates liability for payment of related expenses.

The court considered the reporting physician's rights and defendant's rights in collateral proceedings regarding section 4628 compliance.

From the decision · page 2Additionally, the F&O determines that there is insufficient evidence to establish that the reporting of the QME violates section 4628. (Finding of Fact No. 4.) Pursuant to Labor Code section 4628(e), a judicial determination that a medical-legal report "[failed] to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report." (Lab. Code, § 4628(e).) A judicial determination with respect to an alleged violation of section 4628 necessarily implicates the reporting physician's rights to reimbursement for the preparation of the report as well as the defendant's concomitant right to resist such reimbursement in collateral proceedings. Consequently, the WCJ's determination regarding section 4628 compliance is a final order.

Cal. Code Regs, tit. 8, 10682(c)

All medical-legal reports must comply with Labor Code section 4628; failure to comply does not make the report inadmissible but is considered in weighing evidence.

The court applied this regulation to evaluate the materiality of Dr. Lee's reports after disclosure of medical record summarizers.

ADJ11796055 · February 12, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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