California: Appellate Court Rejects Argument for Admissibility of “Privately Retained Medical Expert” Report

The 2nd District Court of Appeal has issued an opinion in Batten v W.C.A.B., wherein the applicant had challenged the W.C.A.B.’s interpretation of recent statutory changes and in particular Labor Code § 4605 concerning self procured medical legal reports, with a resounding rejection of the applicant’s arguments that there was a conflict in the statutory language and further decisively asserting the authority of the Legislature to regulate workers' compensation matters. In its opinion the court asserts the necessity of following clearly stated statutory law. In its opening paragraph the court sets the tone for its opinion:

“We agree with the Board. Section 4605 provides that an employee may ‘provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.’ When an employee consults with a doctor at their own expense, in the course of seeking medical treatment, the resulting report is admissible.

This reading of section 4605 is consistent with section 4061, subdivision (i). Section 4605 permits the admission of a report by a consulting or attending physician, and section 4061, subdivision (i) permits the admission of an evaluation prepared by a treating physician. Neither section permits the admission of a report by an expert who is retained solely for the purpose of rebutting the opinion of the agreed medical expert's opinion.”

In Batten, the applicant alleged injury to multiple body parts including psyche. An AME in psychiatry reported that less than 50% of the applicant’s condition was related to her injury/employment, a finding which if accepted by the WCJ would have compelled a finding of no injury. On request of applicant attorney, the WCJ “authorized” applicant to obtain a rebuttal report citing Labor Code § 4064(d). The rebuttal report concluded the applicant’s psychiatric condition was predominately caused by employment. The WCJ rejected the AME opinion and relied on the applicant’s rebuttal report to find psychiatric injury.

Defendant’s Petition for Reconsideration was granted by the W.C.A.B., which issued a decision reversing the WCJ, finding the rebuttal report not admissible and ordering the WCJ to rely on the opinion of the AME. Applicant’s Petition for Reconsideration from that order, while granted by the W.C.A.B., ultimately had the same result as the initial decision on Reconsideration.

The 2nd District Court of Appeal granted applicant’s Petition for Writ of Review, requesting the parties to focus on the impact of Labor Code § 4061(i) which the court believed had not been adequately addressed by the W.C.A.B. However, the court had little difficulty in concluding that the section which was the subject of its inquiry did not provide any ability for a party to obtain a “privately retained expert” and instead, specifically excluded such reports:

“Section 4061, subdivision (i) does not nullify section 4064, subdivision (d), but it does prohibit the admissibility of reports by privately retained experts. Had the Legislature intended to permit the admission of additional comprehensive medical reports, obtained at a parties' own expense for the sole purpose of rebutting the opinion of the qualified medical expert, it would have said so. The plain and unambiguous language of section 4061, subdivision (i) precludes such an interpretation…”

Applicant further argued the report was admissible pursuant to the recently revised Labor Code § 4605 which allows for “consulting or evaluating” physicians. Applicant attorney noted the report of the retained expert had been reviewed by the AME, the doctor had been deposed and the report reviewed by VR experts. Applicant asserted this complied with the requirement under Labor Code § 4605 for the report to be “reviewed”. The court, however, noted, as had the W.C.A.B., that the applicant had not obtained a consulting report from such a physician but had specifically obtained a medical legal report under Labor Code § 4064(d).

“…We agree with the Board. Section 4605 provides that an employee may ‘provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.’ When an employee consults with a doctor at their own expense, in the course of seeking medical treatment, the resulting report is admissible.

This reading of section 4605 is consistent with section 4061, subdivision (i). Section 4605 permits the admission of a report by a consulting or attending physician, and section 4061, subdivision (i) permits the admission of an evaluation prepared by a treating physician. Neither section permits the admission of a report by an expert who is retained solely for the purpose of rebutting the opinion of the agreed medical expert's opinion…”

The court affirmed the W.C.A.B. opinion. Presumably the case will return to the WCJ for a decision in reliance on the opinion of the AME.

COMMENTS AND CONCLUSIONS:

This is another in a series of decisions where appellate courts have emphasized the need to follow the legislature’s dictates in creating and regulating the workers' compensation system. Needless to say, if the court had gone the other way, obtained privately retained experts would have become the rule, rebuttal to unfavorable AME reports would become the norm and the legislature’s intent to reduce litigation would have resulted in the exact opposite.

While the employer community might become concerned that the use of “consulting or evaluating” physicians under Labor Code § 4605 might serve the same purpose, that section has some additional limiting language that makes its use less amenable to the kind of gamesmanship that occurred in this case. :Labor Code § 4605 specifically provides that such report can be admissible if reviewed by a treating physician or QME, but does not include similar language for an AME to review. Presumably this is due to the higher status given to an AME whose opinion is to be followed absent a finding that the report is not substantial evidence. There is also the additional language that the report of the consulting or evaluating physician’s report

“…shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion."

In this case, the only report that found the case compensable (at least according to the reports) was that of applicant’s retained expert. Therefore, under the statutory provisions in Labor Code § 4605, even if the report were admissible, the WCJ could not rely upon it as the sole opinion for a finding.

While the gamesmanship will likely continue in this arena, this avenue appears to be firmly blocked.

© Copyright 2015 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.