What the panel ordered
Petition for Removal granted to amend Findings and Order to find the November 16, 2021, report of Dr. Scheinbaum admissible; remainder of Findings and Order affirmed
Petition for Removal of the June 8, 2022, Findings and Order replacing the panel qualified medical evaluator
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 petition for removal was denied except for amending the Findings and Order to find the November 16, 2021 report of Dr. Scheinbaum admissible, as the report was properly prepared by the physician himself and not excluded under Labor Code section 4628(e).
From the decision · page 1Applicant seeks removal of the June 8, 2022, Findings and Order wherein the workers' compensation administrative law judge (WCJ) found that defendant substantially complied with California Code of Regulations, title 8, section 31.5(a)(12) and ordered that Dr. Scheinbaum be replaced as the panel qualified medical evaluator. The WCJ also found that the November 16, 2021, report of Dr. Scheinbaum is inadmissible.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Scheinbaum personally performed the review of records, testing and evaluation in his report.
Favours Applicant prevailed
This fact supported the finding that the report was admissible under Labor Code section 4628(e), leading to granting removal to amend the Findings and Order.
From the decision · page 3The WCJ also cited section 4628(e) in finding the report inadmissible. (Lab. Code, § 4628(e).) Section 4628 is an anti-ghostwriting statute and a physician's failure to comply with the statute renders a report inadmissible. (See Scheffield Medical Group v. Workers' Comp. Appeals Bd. (1999) 70 Cal.App.4th 868, 881.) However, Dr. Scheinbaum's report reflects that he performed the review of records, testing and evaluation of applicant himself. (Joint Exhibit J1, PQME Report Joel Scheinbaum, M.D., March 25, 2022, p. 1.) Thus, there is not a basis to exclude his report from evidence under section 4628. The finding will be amended to state that the report is admissible and the order stating his report is not admissible as evidence will be removed (Order No. 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.
Dr. Scheinbaum prepared a report dated November 16, 2021, which was initially found inadmissible but later found admissible as he personally performed the review and evaluation, complying with Labor Code section 4628(e).
The report was found admissible because Dr. Scheinbaum personally performed the review and evaluation, not violating the anti-ghostwriting statute.
From the decision · page 1Applicant seeks removal of the June 8, 2022, Findings and Order wherein the workers' compensation administrative law judge (WCJ) found that defendant substantially complied with California Code of Regulations, title 8, section 31.5(a)(12) and ordered that Dr. Scheinbaum be replaced as the panel qualified medical evaluator. The WCJ also found that the November 16, 2021, report of Dr. Scheinbaum is inadmissible.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a)
Removal of a panel qualified medical evaluator requires showing significant prejudice or irreparable harm and that reconsideration is not an adequate remedy (Cal. Code Regs., tit. 8, 10955(a)).
The petitioner did not show entitlement to removal except to amend the Findings and Order regarding report admissibility.
From the decision · page 2We affirm the WCJ's Order to select a replacement panel qualified medical evaluator. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) In this case, applicant has not shown that she is entitled to removal of the decision to replace the panel qualified medical evaluator.
Lab. Code, 4628(e)
Anti-ghostwriting statute excludes reports if the physician did not personally perform the evaluation (Lab. Code, 4628(e)).
Dr. Scheinbaum's report was admissible because he personally performed the review and evaluation.
From the decision · page 3The WCJ also cited section 4628(e) in finding the report inadmissible. (Lab. Code, § 4628(e).) Section 4628 is an anti-ghostwriting statute and a physician's failure to comply with the statute renders a report inadmissible. (See Scheffield Medical Group v. Workers' Comp. Appeals Bd. (1999) 70 Cal.App.4th 868, 881.) However, Dr. Scheinbaum's report reflects that he performed the review of records, testing and evaluation of applicant himself. (Joint Exhibit J1, PQME Report Joel Scheinbaum, M.D., March 25, 2022, p. 1.) Thus, there is not a basis to exclude his report from evidence under section 4628. The finding will be amended to state that the report is admissible and the order stating his report is not admissible as evidence will be removed (Order No. 3).
Lab. Code, 4064(d), 5703(a), 5708
Medical reports are generally admissible if obtained in accordance with the Labor Code (Lab. Code, 4064(d), 5703(a), 5708).
The November 16, 2021 report was found admissible as it complied with the Labor Code.
From the decision · page 2However, we will grant removal to amend the Findings and Order to find that the November 16, 2021, report of Dr. Scheinbaum is admissible. Statutory and case law favor the admissibility of medical reports provided they were obtained in accordance with the Labor Code. (See Lab. Code, § 4064(d), 5703(a), 5708; e.g., Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231 [78 Cal.Comp.Cases 1209].) The Labor Code does not require us to exclude late reports from evidence.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Scheinbaum's report reflects that he performed the review of records, testing and evaluation himself, supporting admissibility under Labor Code section 4628(e).
From the decision · page 3The WCJ also cited section 4628(e) in finding the report inadmissible. (Lab. Code, § 4628(e).) Section 4628 is an anti-ghostwriting statute and a physician's failure to comply with the statute renders a report inadmissible. (See Scheffield Medical Group v. Workers' Comp. Appeals Bd. (1999) 70 Cal.App.4th 868, 881.) However, Dr. Scheinbaum's report reflects that he performed the review of records, testing and evaluation of applicant himself. (Joint Exhibit J1, PQME Report Joel Scheinbaum, M.D., March 25, 2022, p. 1.) Thus, there is not a basis to exclude his report from evidence under section 4628. The finding will be amended to state that the report is admissible and the order stating his report is not admissible as evidence will be removed (Order No. 3).
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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.
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