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No second guessing the Qualified Medical Evaluator

On October 28, 2015, the California Court of Appeal issued a decision in Batten v. Workers’ Compensation Appeals Board (Long Beach Memorial Hospital), again reminding the workers’ compensation community that statutes which are plainly stated must be followed.

In affirming the WCAB, the Court of Appeal held an injured worker may not obtain a report to rebut a panel QME from anyone other than a primary treating physician .  In the Batten case, an injured worker obtained a medical report from her own qualified medical expert even though there was a panel QME in the case; she did this after the workers’ compensation administrative law judge authorized her to do so.  The injured worker argued it was admissible under Labor Code section 4063 which notes “all comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2.”

The QME found there was not sufficient causation for the claimed psyche injury while the “hired gun” medical expert determined it was industrial.  The Court of Appeal emphasized that medical evaluations to determine compensability or resolve disputes must be obtained pursuant to Labor Code section 4062.2.  The Court of Appeal also emphasizes reports regarding permanent impairment may be admissible from a primary treating physician, while all other privately retained expert reports are not admissible.  The Court of Appeal further agreed with the WCAB that Labor Code section 4605 allowing a “consulting doctor” to provide an opinion is limited to medical treatment issues, not medical-legal issues to try to rebut a panel QME.

This is another case where the Court of Appeal highlights that the language in the statutes or in their decision really is what the legislature or the court meant.  While Labor Code section 3202 provides the law should be construed liberally with the purpose of extending benefits for injured workers, it does not mean the words should be ignored. In this case, a legislative rule expressly declares such evidence to be inadmissible. Consequently, “there is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law.”

For additional information regarding this topic or any legal matters, please contact Martin Guzman at or Michael Wang at