California Labor Code § 4062

Determinative passage · p.6(2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].) "When there are disputes about the appropriate medical treatment, temporary or permanent disability, vocational rehabilitation, the disability rating, or the need for continuing medical care, Labor Code section 4061 or 4062 applies. [Citations.] Sections 4061 and 4062 of the Labor Code establish the procedures for resolving such disagreements." (Tenet/Centinela Hospital Medical Center v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 1041, 1048, citing Keulen v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 1089, 1096.) Section 4061, subdivision (b), provides: (b) If either the employee or employer objects to a medical determination made by the treating physician concerning the existence or extent of permanent impairment and limitations or the need for future medical care, and the employee is represented by an attorney, a medical evaluation to determine permanent disability shall be obtained as provided in Section 4062.2. (Lab. Code, § 4061(b).) Section 4062, subdivision (a), provides, in pertinent part:

Applicant's objection letter met the requirements of section 4061, entitling her to a QME panel under section 4062.2, invalidating the WCJ's contrary finding.

Determinative passage · p.2Where defendant has accepted liability for an injury, the compensability of an additional body part is ordinarily a medical determination to be made by the primary treating physician pursuant to section 4062. (See Lab. Code, § 4060(a), 4062.) In cases where applicant is being provided treatment, the ordinary procedure is to first obtain the opinion of the primary treating physician who "shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation[.]" (Cal. Code Regs., tit. 8, § 9785(d).) In cases where the additional body part is outside the expertise of the primary physician, the primary physician should refer applicant to a secondary physician who "shall report to the primary physician in the manner required by the primary physician." (Id. at § 9785(e)(3).) Then, the primary physician "shall be responsible for obtaining all of the reports of the secondary physicians and...

Described the ordinary procedure for obtaining an additional panel in accepted claims and the alternative procedure in denied claims.

Determinative passage · p.5We first address the issue of the admissibility of the July 14, 2014 reporting of applicant's QME Dr. Miller. Defendant challenges the admissibility of the report as not having been obtained pursuant to the requirements of sections 4061 or 4062. (Opinion on Decision, at p. 3.) Accordingly, the parties placed in issue the admissibility and weight of the reporting of Dr. Miller at trial. (Minutes of Hearing, dated August 27, 2018, at pp. 3:14; 4:6; 4:23.) The WCJ observed that sections 4061 and 4062 required a party to object to a treating physician report prior to obtaining a QME. (Opinion on Decision, at p. 3.) Here, the record reflected no objection to a treating physician report, leading the WCJ to conclude that the reporting had been obtained outside the requirements of section 4061 or 4062.

The WCJ initially excluded Dr. Miller's report for lack of objection under these sections but later found the report admissible under section 4060 due to compensability dispute.

Determinative passage · p.2BACKGROUND Applicant, a food worker for Fresno Foods, LLC, filed an application alleging a specific injury to her neck, back, both shoulders and both arms, when she fell at work on September 26, 2022. (11/18/22 Application.) She received medical treatment from Kings Industrial Occupational Medical Center, Inc., which served as her PTP. (Joint Exh. AA1.) A PTP report written by nurse practitioner Beltran was issued May 26, 2023. (Ibid.) The report was not signed by a supervising physician. (Ibid.) On October 10, 2023, defendant issued an objection letter to the PTP report, pursuant to Labor Code sections 4061 and 4062. (Joint Exh. BB.) Defendant subsequently obtained a QME panel in Orthopedic Surgery. (Defendant's Exh. A.) In a letter dated November 7, 2023, applicant acknowledged defendant's objection to the PTP report, defendant's request for a panel, and defendant's strike of one doctor from that panel. (Applicant's Exh.

Defendant's objection letter to the nurse practitioner's PTP report was filed pursuant to these sections and found valid to trigger the panel process.

Determinative passage · p.1Applicant contends that the Order denying this request was in error as it was based upon an incorrect assumption that applicant's objection letter invoking the panel process per Labor Code1 section 4062(a) was untimely.

Governs the process and requirements for obtaining additional QME panels in represented cases.

Determinative passage · p.6Dr. Gottschalk's second report, (see Exhibit 2) does not address a disputed medical fact. The only disputed issue addressed by Dr. Gottschalk is the reasonableness and necessity of a specific medical treatment, MRI of the applicant's right foot. Neither of Dr. Gottschalk's reports address nor is capable of proving or disproving a contested claim, or proving or disproving a disputed medical fact, the determination of which is essential to an adjudication of the applicant's claim for benefits. The only issue Dr. Gottschalk addressed was the need for a specific medical procedure which does not elevate either of his reports to medical-legal per Labor Code § 4620. Additionally, Labor Code § 4062(b) states "If the employee objects to a decision made pursuant to § 4610 to modify, delay, or deny a request for authorization of medical treatment recommendation made by a treating position, the objection shall be resolved only in accordance with independent medical review process established in § 4610.5."

Lien claimant failed to comply with this mandate, so reimbursement was denied.

Determinative passage · p.13Moreover, we have previously held in Simi v. Sav-Max Foods, Inc. (2005) 70 Cal.Comp.Cases 217 [2005 Cal. Wrk. Comp. LEXIS 3] (Appeals Bd. en banc) (Simi), that because the legislature did not provide a medical-legal procedure for cases occurring prior to the effective date of SB899, "section 4062, as it existed before its amendment by SB 899, continues to provide the procedure by which AME and QME medical-legal reports are obtained in cases involving represented employees." (Id. at p. 221.)

The panel applied Simi and related cases to hold that the medical-legal reporting process under former section 4062 applies to this claim.

Determinative passage · p.2In the absence of appellate authority relevant to a cumulative injury, we turn to the en banc decision of the Appeals Board in Simi v. Sav-Max Foods, Inc. (2005) 70 Cal.Comp.Cases 217, [2005 Cal. Wrk. Comp. LEXIS 3] (Simi), which is both instructive and mandatory authority herein, and which the court in Nunez and Cortez specifically approved. (Nunez, supra, at p. 593.) In Simi, the parties stipulated that applicant sustained a cumulative injury ending September 5, 2002. (Id. at p. 218.) We held that because the legislature did not provide a medical-legal procedure for cases occurring prior to the effective date of SB899, "section 4062, as it existed before its amendment by SB 899, continues to provide the procedure by which AME and QME medical-legal reports are obtained in cases involving represented employees." (Id. at p. 221.)

Applied to determine the applicable medical-legal procedure for applicant's injury claim.