ADJ10385820 — California WCAB decision

What the panel ordered

Decision after reconsideration grants petition, rescinds October 10, 2023 F&O, and returns matter to trial level for further proceedings

Petition for reconsideration granted, prior Findings of Fact and Orders (F&O) from October 10, 2023 rescinded, matter returned to trial level for further proceedings and decision by WCJ

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This docket was decided more than once. Shown here is the latest released decision; we also hold January 21, 2022.

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.

Medical treatment / UR / IMRRemanded

The WCJ's order to exclude the October 6, 2021 report of Dr. Munday from submission to the QME was rescinded because the issues of whether the report is a comprehensive medical legal report, compliance with sections 4060 and 4062.2, and waiver of objection by applicant must be further addressed at trial level.

From the decision · page 10In summary, we concur with the WCJ's analysis that section 4605 is not relevant to the issue of the submission of the October 6, 2021 report of Dr. Munday, obtained by defendant, to the QME. We conclude however that the issues that must be addressed herein are whether the reporting of Dr. Munday is properly considered a comprehensive medical legal report, whether the report was obtained in compliance with section 4060 and 4062.2, and whether applicant has waived his objection to the submission of the October 6, 2021 report of Dr. Munday to the QME. Accordingly, we will grant reconsideration, rescind the October 10, 2023 F&O, and return the matter to the trial level for further proceedings and decision by the WCJ. Any aggrieved person may thereafter seek reconsideration.

The facts that decided it

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

The October 6, 2021 report of Dr. Munday was obtained by defendant pursuant to applicant's then pending LHWCA claim and is not a consulting physician report under sections 4600, 4062.1, or 4605.

Favours Defendant prevailed

This fact supports the WCJ's original exclusion of the report from submission to the QME and the need for further trial-level proceedings to determine admissibility.

From the decision · page 2FACTS Applicant claimed injury in the form of Non-Hodkin's Lymphoma/angioimmunoblastic T-cell Lymphoma (NHL/AITL) while employed as an Inside Machinist by defendant NASSCO from August 1, 2013 to August 1, 2014. Defendant denies the injury arose out of and in the course of employment. The parties have selected Timur Durrani, M.D., as the QME in toxicology. In addition to the currently pending claim brought under California law, applicant also filed a claim for workers' compensation benefits under the concurrent jurisdiction of the Longshore and Harbor Workers' Compensation Act (LHWCA). (33 U.S.C. § 901-50.) Pursuant to applicant's LHWCA claim, defendant obtained two reports from toxicologist Stephen Munday, M.D. The parties to applicant's currently pending California workers' compensation claim agreed to submit Dr. Munday's initial report dated March 20, 2019, to QME Dr. Durrani. (See Ex. F, Transcript of the Deposition of Timur Durrani, M.D., dated February 20, 2020, at p. 80:6.) Dr. Durrani reviewed the reporting of Dr. Munday and issued a supplemental report on February 9, 2020. (Id. at p. 83:9.)

Applicant objected to the submission of Dr. Munday's October 6, 2021 report to the QME, contending it was not admissible under Labor Code sections 4060 and 4062.1 and not allowable under section 4605.

Favours Applicant prevailed

Applicant's objection is a key factor in the reconsideration and remand for further proceedings.

From the decision · page 9We acknowledge defendant's contention that the issue of whether the October 6, 2021 report of Dr. Munday may be submitted to the QME has been waived by applicant. Defendant observes that "[a]pplicant has already agreed to send Dr. Munday's report addressing that issue to the PQME... Any objection to updated reports on the same causation and medical research issues

The rules the panel named

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

DWC Rule 35(e)

Prohibits submission of medical reports prepared by non-treating physicians outside the medical-legal process unless ruled admissible by a WCJ.

From the decision · page 8Defendant contends that the analysis in Ward, supra, and Batten, supra, both address issues of admissibility of the reporting, and whether such a report can be the sole basis for an award, rather than the separate issue of whether the reporting of Dr. Munday may be submitted to QME Dr. Durrani. However, as is discussed infra, section 4605 applies in instances where applicant is offering the report. Moreover, Division of Workers' Compensation (DWC) Rule 35(e) provides that:

71 Cal.Comp.Cases 1313

Ward v. City of Desert Hot Springs (2006)

Clarifies that compensability disputes must be resolved under section 4062.2 and reports obtained outside this process are inadmissible.

From the decision · page 7In Ward v. City of Desert Hot Springs (2006) 71 Cal.Comp.Cases 1313 [2006 Cal. Wrk. Comp. LEXIS 313], defendant sought to compel applicant to be examined by a private doctor per section 4064(d). The Appeals Board found that "disputes regarding the compensability of the alleged industrial injury must be resolved, pursuant to section 4060(c), by the procedure provided in section 4062.2 and that an evaluation regarding compensability may not be obtained pursuant to section 4064--and, if a report is obtained, it is not admissible." (Id. at p. 1317.)

Labor Code sections 4060, 4062.1, 4062.2, 4605

These statutes govern the admissibility and submission of medical reports to QMEs in workers' compensation claims.

From the decision · page 5Labor Code section 4060 provides, in relevant part, as follows:

241 Cal.App.4th 1009

Batten v. Workers' Comp. Appeals Bd. (2015)

Distinguishes admissibility of medical reports and emphasizes the medical-legal process requirements under sections 4060 and 4062.2.

From the decision · page 9Here, we also find the distinction to be relevant. The F&O prohibits defendant from submitting the October 6, 2021 reporting of Dr. Munday to the QME because it is not a consulting physician report under section 4600, 4062.1 and/or 4605. (F&O, Finding of Fact No. 3.) We believe, however, that the issue that must be addressed is whether the October 6, 2021 report of Dr. Munday is a comprehensive medical legal report, as contemplated by section 4060 and 4062.2. If the reporting is a comprehensive medical legal evaluation, and it was obtained outside the mandated procedures of section 4060 and 4062.2, it is inadmissible and under Rule 35(e) may not be submitted to the QME. (Cal. Code Regs., tit. 8, § 35(e); Batten, supra, at p. 1015.)

ADJ10385820 · January 2, 2024

What the panel ordered

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The facts that decided it

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