07 Jun 2017

My Favorite Labor Code Section

By Robert G. Rassp, Esq.

A number of years ago, a colleague of mine visited me at my vacation home. In fact, he and his wife visited us there every six months for 15 years. In any event, on a glorious 4th of July weekend, we were sitting on our balcony overlooking the national forest and in the midst of too many scotches, I asked him if he knows that there is a Labor Code section that says prior decisions of WCAB panels are admissible on similar issues. That question sparked an argument. After all, what are friends for?

My friend then asked if I had my Labor Code at the house. I said, “yes” and I asked him if he actually brought his copy on his vacation and of course, he also said “yes.” Who among us brings our Labor Code with us while on vacation? In any event, we stumbled down stairs, with me running down to my office and he stumbling to the guest room to each retrieve our respective copies of the “Blue Book” aka Workers’ Compensation Laws of California (LexisNexis). As if his copy was different from mine. I then opened my book to Labor Code Section 5703, my favorite Labor Code Section and read it to him as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing:

(a) Reports of attending or examining physicians.

(1) Statements concerning any bill for services are admissible only if made under penalty of perjury that they are true and correct to the best knowledge of the physician.

(2) In addition, reports are admissible under this subdivision only if the physician has further stated in the body of the report that there has not been a violation of Section 139.3 and that the contents of the report are true and correct to the best knowledge of the physician. The statement shall be made under penalty of perjury.

(b) Reports of special investigators appointed by the appeals board or a workers’ compensation judge to investigate and report upon any scientific or medical question.

(c) Reports of employers, containing copies of timesheets, book accounts, reports, and other records properly authenticated.

(d) Properly authenticated copies of hospital records of the case of the injured employee.

(e) All publications of the Division of Workers’ Compensation.

(f) All official publications of the State of California and United States governments.

(g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues.

(h) Relevant portions of medical treatment protocols published by medical specialty societies. To be admissible, the party offering such a protocol or portion of a protocol shall concurrently enter into evidence information regarding how the protocol was developed, and to what extent the protocol is evidence-based, peer-reviewed, and nationally recognized. If a party offers into evidence a portion of a treatment protocol, any other party may offer into evidence additional portions of the protocol. The party offering a protocol, or portion thereof, into evidence shall either make a printed copy of the full protocol available for review and copying, or shall provide an Internet address at which the entire protocol may be accessed without charge.

(i) The medical treatment utilization schedule in effect pursuant to Section 5307.27 or the guidelines in effect pursuant to Section 4604.5.

(j) Reports of vocational experts. If vocational expert evidence is otherwise admissible, the evidence shall be produced in the form of written reports. Direct examination of a vocational witness shall not be received at trial except upon a showing of good cause. A continuance may be granted for rebuttal testimony if a report that was not served sufficiently in advance of the close of discovery to permit rebuttal is admitted into evidence.

(1) Statements concerning any bill for services are admissible only if they comply with the requirements applicable to statements concerning bills for services pursuant to subdivision (a).

(2) Reports are admissible under this subdivision only if the vocational expert has further stated in the body of the report that the contents of the report are true and correct to the best knowledge of the vocational expert. The statement shall be made in compliance with the requirements applicable to medical reports pursuant to subdivision (a).

(Amended by Stats. 2012, Ch. 363, Sec. 81. Effective January 1, 2013.)

Section 5703 is the engine that drives a trial – it tells attorneys and judges exactly what is admissible in a WCAB proceeding. Most practicing workers’ compensation attorneys take Section 5703 for granted but it has changed in recent years to accommodate issues that are relevant since SB 899 was enacted in 2004 and SB 863 was enacted in 2012.

Subsection 5703(g) has been on the books for decades. Look at Section 5703(g) in isolation:

(g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues.

For example, assume there is a final WCAB panel decision that says that complex regional pain syndrome (CRPS) is a central nervous system disorder and not a lower or upper extremity disorder that is subject to the limitations of a maximum impairment rating that is equal to an amputation and then adjusted for age, DFEC (for dates of injury before 1/1/13, 1.4 multiplier for injuries on or after 1/1/13), and occupation in accordance with the 2005 PDRS on page 1-11. Now you have a similar case where the AME, PQME, or treating physician confirms the diagnosis of CRPS and the WPI rating is greater than the adjusted rating of an amputated leg (>40% WPI) or of an amputated arm (>60% WPI) that is contrary to the PDRS. Can you use the panel decision as evidence that CRPS is not a lower or upper extremity disorder and therefore not subject to the amputation limit of the PDRS?

If you list a copy of Cathleen Porter vs. Coldwater Creek, 2014 Cal. Wrk. Comp. P.D. LEXIS 178 as an exhibit in the Pre-Trial Conference Statement at the MSC, serve the decision on your opponent, and include it as an exhibit at the trial, it is admissible under Section 5703(g). You could also ask the trial judge to admit a copy of the WCAB panel decision under Section 5703(f) or for the judge to take judicial notice of the decision under Evidence Code Section 452(d)(1).

Subsections 5703(h) and (i) are relevant to use in terms of proving medical necessity if counsel is challenging a UR denial, modification, or delay or responding to an IMR Notice of Assignment from Maximus.

The recent addition of the use of vocational rehabilitation expert opinion is also noteworthy. As we all know, the conclusions of medical physicians, evaluator or treater, have to be based on reasonable medical probability and constitute substantial medical evidence in order for those conclusions to support a WCAB decision. What is the standard of proof for a vocational expert? Section 5703 assists us in two ways.

Sub-section 5703(j)(2) requires that the vocational expert state in his or her report that “the contents of his or her report” are true and correct based on his or her knowledge and that the report and billing comply with Section 5703(a) which also requires that the expert assert that the vocational expert’s report’s contents are true and correct.

However, it can be argued from a strictly evidentiary standpoint that the conclusions of a vocational expert should be based on reasonable expert opinion, similar to “reasonable medical probability,” and also constitute substantial expert opinion evidence. In fact, counsel should ask a judge to make a finding that a particular vocational expert rendered an opinion in a case that “constitutes substantial expert opinion that is reliable, persuasive, and credible; and is based on the knowledge, education, skill and expertise” of the vocational counselor.

What is missing from Labor Code Section 5703 is the issue of whether or not medical studies are admissible in a workers’ compensation case to rebut medical opinion that cites contrary scientific evidence. The recent case of City of Jackson v. Workers’ Compensation Appeals Board (Rice) (2017) 11 Cal. App. 5th 109, 82 Cal. Comp. Cases 437, comes to mind. In Rice, the Court of Appeal upheld apportionment of permanent disability from degenerative disc disease in a cervical spine of a relatively young police officer as being partially due to his genetics and heredity. This finding was based on a medical-legal report that adopted and incorporated some medical literature that supported that position. The Applicant failed to confront the medical legal evaluator with contrary scientific studies that rebut the genetic or an hereditary basis of apportionment. This could be accomplished by either deposing the doctor or submitting the rebuttal literature to the doctor with a request for a supplemental report.

So the battles of medical studies cannot be submitted directly to a workers’ compensation judge. In accordance with Section 5703, medical studies and medical literature must be submitted through a medical expert in the form of a supplemental report or deposition transcript and is probably not admissible directly at trial as a stand-alone exhibit unless it has been referred to by a physician in a report or deposition.

Another favorite statute is not in the Labor Code but is in the Evidence Code – Sections 451 and 452 – the judicial notice statutes. Oftentimes, counsel will ask a WCJ to take judicial notice of something – e.g. that June 19, 2017 is a Tuesday, or that there are 365.25 days per year, or of a specific case citation. These are facts that are easily ascertainable and part of common knowledge. But asking a judge to take judicial notice of something can get complicated if your opponent objects.

California divides judicial notice into two separate kinds – one that is mandatory, Evidence Code Section 451, and one that is discretionary, Section 452.

Evidence Code Section 451 includes six mandatory classes of judicial notice that must be followed: decisional, constitutional, and public statutory law of the state and federal government; matters that fall under specific sections of the California Government Code and Federal law; Rules of Professional Conduct under Business and Professions Code Section 6076 and rules of practice and procedure for the judicial counsel; Rules of Pleading and Practice of the federal courts; Section 451(e): “The true signification of all English words and phrases and of all legal expressions;” and Section 451(f): “Facts and propositions of general knowledge that are so universally known that they cannot reasonably be the subject of dispute.”

I guess based on the last two, it is conclusively presumed that an attorney knows the difference between res judicata and collateral estoppel. It is also conclusively presumed that the sun rises in the east and sets in the west. What about the other planets? FYI, Venus and Uranus rotate east to west and not west to east.

Evidence Code Section 452 covers things that that are not in Section 451 which may be subject to judicial notice and which allows wiggle room for counsel to object: the decisional, constitutional, and statutory law of any other state and private acts of Congress or the California state legislature; regulations and legislative enactments issued by or under the US or any public entity in the US; official acts of the legislative, executive, and judicial departments of the US or any state; Section 452(d): “Records of (1) any court of this state or (2) any court of the United States or of any state of the United States;” Rules of court of the United States, California, or any state; the law of an organization of nations, and of foreign nations, and public entities of foreign nations; Section 452(g): “Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute;” and Section 452(h): “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

The Cathleen Porter WCAB Noteworthy Panel Decision, described above, would also be admissible in another WCAB proceeding involving CRPS under Evidence Code section 452(d)(1) since the WCAB decision is part of a “court record” of the State of California.

Evidence Code Section 453 sets the ground rules for obtaining judicial notice of something under Section 452: A party has to ask the judge to take judicial notice, the opposing counsel has a right to object, and the propounding party then has the burden to provide the court with sufficient information to enable it to take judicial notice of the matter. Evidence Code Section 455 allows a judge to request source information or even the “advice of persons learned in the subject matter” and the “tenor of the matter to be noticed.” An example of that has included testimony from an astronomer that local sunset time on June 4, 2017 in Los Angeles was at 7:58 p.m.

Even though formal rules of evidence do not apply in our workers’ compensation cases, judicial notice still rears its head in our proceedings. Therefore, Evidence Code Sections 451, 452, 453, and 455 may not be within My Favorite Labor Code Section but go hand in hand with what evidence is admitted in WCAB proceedings outside a stipulation of facts.

This article is dedicated to the tenth anniversary of Ken Rowen’s untimely death June 2, 2007 at age 65. Ken was a brilliant but controversial man and after ten years, those of us who knew him or worked for him still talk about him and miss him. He was a once in a lifetime friend, colleague, mentor, and tormentor. All of us who used to work for Ken belong to an unnamed alumni association – all of us knowingly nod when his name is mentioned even ten years after he died. Note: The author worked for Rowen, Swanson, Rose & Simon from May 1979 through May 1983.