California: Supreme Court Affirms COA in Valdez

The Supreme Court has issued its long awaited ruling in the W.C.A.B. en banc decision (titled Valdez v W.C.A.B. in the Appellate Courts) regarding the admissibility of medical reports obtained by applicants under Labor Code § 4605. The W.C.A.B. in its decision had rule such reports to be not admissible. The W.C.A.B.’s decision was reversed by the Court of Appeal in but with the Supreme Court granting defendant’s Petition for Hearing, this issue has been up in the air till now.

One of the issues the Supreme Court has had to address is the impact of the amendments to the Labor Code section it was examining that became effective with SB 863. That labor code section was amended to provide admissibility for such reports but restricted the ability of the W.C.A.B. to rely upon the reports. In a footnote the Court observes that those changes “shed considerable lit on the issue before us”.

It its decision the Supreme Court clearly sided with the Court of Appeal’s interpretation of the impact of Labor Code § 4616.6 that the limitation on admissibility applies only to diagnosis and treatment within the MPN. In arriving at this conclusion the Court also reviewed the sections involving the medical legal process (Labor Code § 4060 - 4064) noting that 4064(d) specifically provides that

“…“no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense” and “all comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board,” except as provided in specific statutes….”

While the Court specifically finds the reports obtained under Labor Code § 4605 are admissible in proceedings before the W.C.A.B., and likely would have done so absent the SB 863 amendments to that section, the Court notes the legislature made no changes to 4616.6 but did make extensive revisions to 4061 & 4062 to make those sections inapplicable to treatment and diagnosis provide for admissibility with limited ability for the W.C.A.B. to rely upon such a report. As noted by the Court

“…These statutory changes may encourage employees to use MPN services. However, they do not foreclose other avenues of treatment, or bar the Board from considering medical reports generated outside of an MPN when it reviews applications for disability benefits.

We conclude that section 4616.6 restricts the admission of medical reports only in proceedings under article 2.3 to resolve disputes over diagnosis and treatment within an MPN. Our resolution of the admissibility issue on statutory grounds obviates the need to address Valdez’s constitutional claims. We note that on remand to the Board, the amendments effected by Senate Bill 863 are applicable to Valdez’s award, which is not yet final.”

The Court has made it clear that the recent amendment to Labor Code § 4605 will be applicable to the applicant in this proceeding once the case arrives back at the W.C.A.B. Since the initial award of benefits was based solely on the reports of applicant’s consulting physician without the supporting comment of a QME or PTP , the ability of the WCJ to award TD absent additional evidence is likely circumscribed.

COMMENTS AND CONCLUSIONS:

The decision issued by the Court is a remarkably short one for the Supreme Court, only 11 pages. This may in part be to the Court’s reliance on the new statutory provisions in SB 863 as well as the fact that the Court is upholding the lower Court’s opinion and there is a good deal of discussion in that case. However the terseness of the decision may raise some other interesting issue as will be discussed below.

The good news is that the Supreme Court appears to have applied the recent revisions to Labor Code § 4605 exactly as was intended with the new language. Labor Code § 4605 reports are admissible but may not alone form the basis for an award. However where applicant attorney obtain such opinions, if they are able to obtain a concurring opinion from a medical legal evaluator, the W.C.A.B. can rely on such opinions. It remains to be seen if there is sufficient benefit in obtaining such reports if the applicant also has to obtain a concurring opinion from a QME or a PTP. It may be that the most effective use of this section is to bolster the opinion of a QME who is making a recommendation but not providing much support for the conclusion or to rebut a QME opinion where the PTP is supporting the applicant’s position but some additional support can help make the case more viable for the injured worker..

The Court does also specifically conclude that 4616.6 does restrict admissibility of reports to resolve disputes over diagnosis and treatment within the MPN. An employee is free to obtain treatment outside the MPN but the ability to compel the employer to pay for that treatment at the W.C.A.B. does not appear to exist.

The Supreme Court also made of point of notice the language in Labor Code § 4064(d) regarding admissibility of reports “obtained by any party” and then comments in a footnote that none of the referenced sections include any specific restrictions on admissibility of medical evaluation obtained outside of the statutory scheme. Taken at face value the Court indicates that Labor Code § 4064 allows anyone to obtain an admissible report that they pay for, unless specifically limited by statute. Labor Code § 4616.6 provides such a limitation as does Labor Code § 4605. But none of the other referenced sections provide such a restriction.

The discussion regarding admissibility of such reports and the application of Labor Code § 4064(d) to obtaining reports outside the medical legal process is brief, but the Court seems to be stating there are no limits on the ability to obtain a report as long as the party is willing to pay for it. The Court does not reference the W.C.A.B. significant Panel decision in Ward v City of Desert Hot Springs (where in the W.C.A.B. ruled Labor Code § 4062.2 procedures were mandatory to obtain medical legal reports) however in light of the language in this decision, the holding in that case may be subject to question.

One of the questions that therefore has to be asked is whether the Supreme Court has effectively gutted the AME/QME process for obtaining admissible medical reports in a fashion which significantly favors defendants (who pay for reports anyway) vs. applicants (who typically do not pay for reports and if they do, the ability of the W.C.A.B. to rely on the reports is restricted). I certainly doubt that the Court intended to open the door to defendants obtaining reports as they chose, but the Court’s language seems to be suggesting there are no limitations on obtaining admissible reports based on the content of Labor Code § 4064(d). If this turns out to be the case it will be an ironic turn of events where a segment of the applicant’s bar sought the ability to obtain their own reports (rather than using the QME system) and instead opened the door to unrestricted ability of defendants to obtain reports while at the same time the applicant is limited in their use of self-procured evaluations.

We may be looking at an application of the “law of unintended consequences” but only time will tell how far the Court’s language is going to be taken.

© Copyright 2013 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.