ADJ11672907 · September 24, 2026

The medical record was insufficient on the psyche claim, and Dr. Feinberg, the orthopedic AME, recommended a psyche evaluation. The WCAB found good cause for an additional QME panel to address the psyche claim.

From the decision · page 11Taking all the above into consideration and given that the medical record is lacking with respect to the issue of applicant’s psyche claim, we continue to believe that good cause exists for the issuance of an additional QME panel.

The WCAB found that the vocational expert report was reasonably and necessarily incurred despite not affecting the permanent disability rating, thus defendant is liable for the fees.

From the decision · page 12her back, kneeling, and excessive twisting. (Id. at p. 13:10-20.) When questioned about whether applicant would be off task a certain percentage of the day, he ultimately deferred to a psyche evaluator but estimated that applicant would have trouble “eight hours a day, five days a week.” (Id. at pp. 13:21-14:6.) Given this additional information, it was reasonable for applicant to believe that expert reporting was necessary to determine whether the said restrictions affected her vocational prospects. Accordingly, we deny defendant’s Petition. For the foregoing reasons, IT IS ORDERED that defendant’s Petition for Reconsideration of our August 6, 2026 Opinion and Decision After Reconsideration, is DENIED.

Dr. Feinberg, orthopedic AME, recommended a psyche evaluation due to psychological impact of CRPS and emotional distress.

Favours Applicant prevailed

This recommendation showed the medical record was insufficient and justified issuance of an additional QME panel for psyche claim.

From the decision · page 9Additionally, defendant avers that the WCAB’s decision to order an additional QME panel is not supported by substantial evidence. (Petition, p. 9.) As discussed previously in our O&D, applicant was diagnosed with CRPS and orthopedic AME Dr. Feinberg testified that CRPS can affect people in a variety of ways depending upon each person’s specific background. (Exhibit X, pp. 9:14-10:19.) Given this variability, he recommended psyche treatment as well as input from a psyche evaluator. (Id. at pp. 12:16-19, 14:14-22.) Where the record requires further development, the preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the case. (McDuffie v. L.A. County Metro. Transit Authority, supra, 67 Cal.Comp.Cases at p.

Medical record lacked sufficient evidence on psyche claim, requiring further development.

Favours Applicant prevailed

This lack of evidence justified the WCAB's decision to order an additional QME panel to address the psyche claim.

From the decision · page 11Taking all the above into consideration and given that the medical record is lacking with respect to the issue of applicant’s psyche claim, we continue to believe that good cause exists for the issuance of an additional QME panel.

Vocational expert report was reasonably and necessarily incurred despite not affecting permanent disability rating.

Favours Applicant prevailed

This justified defendant's liability for vocational expert fees.

From the decision · page 12her back, kneeling, and excessive twisting. (Id. at p. 13:10-20.) When questioned about whether applicant would be off task a certain percentage of the day, he ultimately deferred to a psyche evaluator but estimated that applicant would have trouble “eight hours a day, five days a week.” (Id. at pp. 13:21-14:6.) Given this additional information, it was reasonable for applicant to believe that expert reporting was necessary to determine whether the said restrictions affected her vocational prospects. Accordingly, we deny defendant’s Petition. For the foregoing reasons, IT IS ORDERED that defendant’s Petition for Reconsideration of our August 6, 2026 Opinion and Decision After Reconsideration, is DENIED.

Confirmed injury to right ankle and foot; noted psychological variables affecting pain experience; recommended psyche evaluation due to anxiety and depression symptoms; testified CRPS patients often emotionally distressed; recommended psyche treatment and evaluation.

Dr. Feinberg is not a psyche specialist but recommended psyche evaluation due to psychological impact of CRPS and emotional distress.

From the decision · page 2On November 5, 2018, applicant filed an Application for Adjudication of Claim (Application) alleging that while employed by defendant as a cashier on February 14, 2017, she sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right ankle and foot. Thereafter, on August 7, 2019, applicant filed an amended Application adding claimed injuries to the left foot and leg. On December 11, 2019, applicant filed another amended Application adding a claimed injury to the psyche. The parties proceeded with discovery and retained Steven Feinberg, M.D. as the orthopedic Agreed Medical Evaluator (AME). Dr. Feinberg evaluated applicant on January 20, 2020, and issued a corresponding report as well as an April 20, 2020 supplemental report. (Exhibits D3-D4.) In his January 20, 2020 report, Dr. Feinberg confirmed injury AOE/COE to the right ankle and foot, and noted the following with respect to applicant’s psyche issues: The results of the present assessment suggest that psychological variables may be affecting her experience of pain and treatment response to a moderate to severe degree. Of particular concern are reported symptoms of depression and anxiety.

A.D. Rule 31.7(b)

Good cause for issuance of additional QME panel includes lack of sufficient medical evidence and recommendation by prior evaluator.

The WCAB found good cause for an additional psyche QME panel due to insufficient medical record and Dr. Feinberg's recommendation.

From the decision · page 9142.) If the supplemental opinions of previously reporting physicians do not or cannot cure the need for development of the medical record, the parties may proceed with the selection of an AME or proceed with the panel QME process pursuant to subdivision (b) of A.D. Rule 31.7, which states, in relevant part, that if a panel QME in a different specialty is needed, the Medical Director shall issue an additional panel upon a showing of good cause. Good cause includes: (1) A written agreement by the parties in a represented case that there is a need for an additional comprehensive medical-legal report by an evaluator in a different specialty and the specialty that the parties have agreed upon for the additional evaluation; or

LC 5811; Costa II; Barr v. WCAB

Vocational expert fees are reimbursable if reasonably and necessarily incurred, even if the report is inadmissible or does not affect permanent disability rating.

The WCAB applied these standards to find defendant liable for vocational expert fees despite the report not affecting permanent disability rating.

From the decision · page 11Lastly, defendant contends that they should not be required to pay applicant’s vocational expert fees “because the report [of Frank Diaz] was neither reasonable nor necessary[.]” (Petition, p. 15.) We reiterate the rationale provided in our O&D wherein we discussed the en banc cases of Costa I and Costa II. In Costa II, we held that costs related to vocational evidence must be reasonable and necessary at the time they were incurred, and such determinations are made on a case-by-case basis. (Costa II, supra, at p. 1498.) We further held that as with medical-legal costs, which may be reimbursable even though the applicant is unsuccessful in his or her claim (see Subsequent Injuries Fund v. Industrial Acc. Com. (Roberson) (1963) 59 Cal.2d 842, 844 [28 Cal.Comp.Cases 139, 140]; Beverly Hills Multispecialty Group, Inc. v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 802 [59 Cal.Comp.Cases 461, 471]), the vocational expert evidence offered by an applicant need not successfully affect the permanent disability rating in order to be found reimbursable. (Costa II, supra, at p. 1498.) Similarly, in the case of Barr v. Workers’ Comp. Appeals Bd.

Dr. Feinberg's testimony about the psychological impact of CRPS and the need for psyche evaluation

From the decision · page 9Additionally, defendant avers that the WCAB’s decision to order an additional QME panel is not supported by substantial evidence. (Petition, p. 9.) As discussed previously in our O&D, applicant was diagnosed with CRPS and orthopedic AME Dr. Feinberg testified that CRPS can affect people in a variety of ways depending upon each person’s specific background. (Exhibit X, pp. 9:14-10:19.) Given this variability, he recommended psyche treatment as well as input from a psyche evaluator. (Id. at pp. 12:16-19, 14:14-22.) Where the record requires further development, the preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the case. (McDuffie v. L.A. County Metro. Transit Authority, supra, 67 Cal.Comp.Cases at p.

Lack of sufficient medical evidence on psyche claim requiring further development

From the decision · page 11Taking all the above into consideration and given that the medical record is lacking with respect to the issue of applicant’s psyche claim, we continue to believe that good cause exists for the issuance of an additional QME panel.