What the panel ordered
The WCAB grants the Petition for Removal, rescinds the WCJ's Order, and returns the matter to the trial level for further proceedings.
Applicant seeks removal of the Order issued by the WCJ on September 21, 2021, which struck the reports and deposition of the QME Dr. Butler pursuant to defendant's Petition to Strike.
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.
The WCJ's Order striking the QME reports was issued without an evidentiary record and without showing a basis under AD Rule 31.5(a) for replacement of the QME. Defendant's reasons did not meet the enumerated grounds for replacement, so the WCAB granted removal of the Order.
From the decision · page 1Applicant seeks removal of the Order issued by the workers' compensation administrative law judge (WCJ) on September 21, 2021. By the Order, the WCJ struck the reports and deposition of the qualified medical evaluator (QME) pursuant to defendant's Petition to Strike Reporting of Panel Qualified Medical Examiner.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's Order striking the QME reports and deposition was issued without an evidentiary record.
Favours Applicant prevailed
Without an evidentiary record, the WCJ's decision could not be supported by substantial evidence as required by law.
From the decision · page 3The Order in this matter was issued without creation of an evidentiary record. We are unable to address whether the WCJ's decision is supported by substantial evidence in the absence of a record.
Defendant's Petition to Strike was based on alleged excessive billing by Dr. Butler, which is not a valid basis for replacement under AD Rule 31.5(a).
Favours Applicant prevailed
The grounds for replacement did not meet the legal requirements, so the Order was improperly issued.
From the decision · page 3Defendant's Petition to Strike alleges that Dr. Butler is not objective because his billing for the 2019 report was purportedly excessive. Defendant cites no legal authority for why a dispute regarding a QME's billing permits for a replacement QME panel. This is not one of the enumerated reasons for a replacement panel per AD Rule 31.5(a). There is no contention by defendant that applicant engaged in ex parte communication with the QME.3
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Evaluated applicant on September 16, 2019, issued report and was deposed. Defendant challenged his objectivity based on billing practices.
The dispute over Dr. Butler's billing was not a valid basis for replacement under AD Rule 31.5(a).
From the decision · page 2Timothy Butler, D.C. was selected as the chiropractic QME and evaluated applicant on September 16, 2019, issuing a report of the same date. (Petition to Strike Reporting of Panel Qualified Medical Examiner, August 26, 2021, p. 1.) Dr. Butler was also deposed by defendant on December 9, 2020. (Id. at p. 2.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc)
Decisions of the Appeals Board must be based on admitted evidence in the record and supported by substantial evidence.
The WCJ's Order was issued without an evidentiary record, violating this standard.
From the decision · page 2Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) Furthermore, decisions of the Appeals Board must be supported by
Cal. Code Regs., tit. 8, 31.5(a)
AD Rule 31.5(a) enumerates the circumstances under which a party may request a replacement QME panel.
Defendant's reasons for replacement did not meet the enumerated grounds under this rule.
From the decision · page 3Although we defer determination of the disputed issues to the trier of fact, we offer the following comments for further proceedings. AD Rule 31.5(a) enumerates 16 circumstances under which a party may request a replacement QME panel. (Cal. Code Regs., tit. 8, § 31.5(a).) Alternatively, a new panel may be obtained when a party engages in ex parte communication with the QME and the aggrieved party elects to terminate the evaluation pursuant to section 4062.3(g). (Lab. Code, § 4062.3(g); Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1814-1815 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
The Order was issued without creation of an evidentiary record, making it impossible to determine if supported by substantial evidence.
From the decision · page 3The Order in this matter was issued without creation of an evidentiary record. We are unable to address whether the WCJ's decision is supported by substantial evidence in the absence of a record.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.