Welcome back dear readers! I hope your weekend was more restful than mine. After hours upon hours child-proofing my house, they still got in! (Tip your waitress, folks, I’ll be here all night).
Anywho, your humble blogger has a really interesting panel decision for you, Sanchez v. Agser Contracting. Applicant is the widow of Agser’s employee, and retained her own doctor who offered an opinion concluding that the death was caused by, in part, the contributions of work exposures. The panel PQME, however, found that the death was non-industrial.
At trial, the WCJ excluded the retained physician’s report and relied on the PQME’s report to issue a “take nothing” order. Why would the WCJ exclude applicant’s privately retained physician’s report? After all, Labor Code section 4605 specifically provides that “[n]othing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”
The WCJ reasoned that section 4605 specifically provides this right to an employee and not a dependent seeking death benefits. On reconsideration, the WCAB rejected this reasoning, finding that 4605 has to do with evidentiary rights, and denying this evidentiary procedure to dependents would violate due process rights. Thus, the WCAB ordered the retained physicians report admissible.
However, the ultimate ruling was not disturbed.
First, the available pool of medical evidence included one QME report which found the injury to be non-industrial, and one 4605 report which found it did. On what basis could the WCJ or the WCAB find an industrial injury? Solely on the 4605 report, of course. And Labor Code 4605 specifically provides “[a]ny report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation.”
The WCAB panel opinion found the 4605 report to be speculative and found the PQME report more persuasive, leaving the “take nothing” order undisturbed.
Here’s some food for thought, dear readers. When your file starts getting sprinkled with these 4605 reports on a denied claim, ask yourself this: is there a lien?
Can the 4605 physician produce bills showing they are paid by the applicant?
Your humble blogger’s thought is as follows: if there is an unpaid bill, especially with the anticipation that the defense will ultimately be asked to pay it, then the report is not “at [applicant’s] own expense” and thus should not qualify as a Labor Code 4605 report. Therefore, it should not be reviewed by the PQME or admissible as evidence.
Just another crackpot idea.
What do you think, dear readers?
You continue to be a great asset to the workers’ compensation community. Next to David DePaola no one gives us a better analysis than you.
Cheers!
It would also be important to discern for what purpose the report was procured and sought to be admitted into evidence. I believe that the court in Batten v. WCAB made it abundantly clear that a report from a consulting doctor for the sole purpose of rebutting an AME report on the med-legal issue – and I would argue that by extension this would apply to PQME reports – would not be admissible. Considering that the employee was dead in the case you have discussed, the self-procured report would have not been for treatment purposes. Could I trouble you for the citation of the case as I would like to read it and see whether this was even addressed by the WCAB panel. Thank you very much.