Happy Monday, dear readers!

Your humble blogger brings you the unpublished Court of Appeal decision in the matter of Davis v. WCAB and the City of Modesto.

Remember, dear readers, unless you want to get yelled at, you don’t cite unpublished decisions in court!  See California Rules of Court 8.1115.

Anywho, in the Davis case, applicant alleged a cumulative trauma and specific injury as a result of his job duties.  Both claims were submitted to a QME who concluded that the condition in question was not industrially caused.

Applicant then hired his own doctor (NOT a QME) and forwarded that doctor’s reports to the QME for comment.  In ruling on the City of Modesto’s objection, the WCJ found that the reports themselves were not admissible, but the QME could review them and comment upon them.

At the heart of the issue, of course, is California Labor Code section 4605, which went into effect in its current form on January 1, 2013.  That section empowers an employee to provide a consulting physician at his or her own expense, and a QME is made obligated by the same section to review and address the issues raised by the reporting of this consulting physician.

The WCAB did not address this argument, by its own admission in the face of applicant’s petition for a Writ of Review.  So, in due course, the Court of Appeal consented to the WCAB’s own request to remand the matter so that the WCAB could address it.

Looking at this issue, of course, it’s hard to read Labor Code section 4605 in any way that does not result in a favorable outcome for Mr. Davis.  It appears that he did exactly what 4605 calls for: he retained a physician at his own expense, paid the physician to write some reports, and then sent those reports to the QME for comment.

That being said, perhaps this is a perfect example of when the Workers’ Compensation Laws of California are weighed heavily against employers and insurers.

Here, the applicant’s attorney can pony up some cash as a litigation expense, hire an expert, and require the QME to review and comment on these reports.  Hypothetically, once the report is commented upon, they might even be submitted for trial and a WCJ might find that the QME’s reports are not substantial evidence when read in comparison to the retained physician’s report (even though, at least in theory, this 4605 report should not be the sole basis for an award).

Now, flip this over – let’s say applicant beats defendant to the punch and gets a pill happy applicant’s QME who has sees a role model in Dr. Nick Riviera:

What remedy does the defendant have to get a reasonable physician to comment on the case?

Well, for one thing, a 4050 exam is NOT an option if the case is denied, and even if applicant submits to a 4050 exam on an accepted case, California Code of Regulations section 35 severely limits the reports that can be sent to the QME, and a WCJ can keep those 4050 reports out!

So, what’s to be done in the Davis case?  Well, for one thing, sometimes the applicant attorneys just can’t help themselves, and they file a lien or demand reimbursement for the payments made to the 4605 doctor.  If that’s the case, then the report isn’t really at the employee’s “own expense.”  In theory at least, such a claim for reimbursement should negate the admissibility of the 4605 report.

Now, one thing a defendant could do in such a situation is to delay.  And the way to do that is to cite California Code of Regulations section 35(e), using the same authority that delays the provision of a 4050 report to the QME.

As section 35(e) provides that “[i]n no event shall any party forward to the evaluator: … (2) any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician, or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge…”

But if the case is denied, the consulting report is likely only addressing causation, and not PD, work restrictions, or apportionment.  Furthermore, wouldn’t an “attending” physician constitute “a treating physician”?

If the stakes are high enough, it may be prudent for the defense to hire a physician to review the relevant reports and help draft a supplemental to go to the QME.

Paging Dr. Nick…