ADJ14244361 — California WCAB decision

What the panel ordered

Reconsideration granted; July 3, 2024 F&O rescinded; new panel of QMEs in psychology ordered to be issued; defendant's petition for replacement panel granted.

Applicant seeks reconsideration of the July 3, 2024 Findings of Fact, Award, and Order (F&O) disqualifying QME Joseph R. Nevotti, Ph.D., and ordering a replacement panel of QMEs; the WCJ recommended denial of reconsideration; the WCAB granted reconsideration, rescinded the F&O, and ordered a new panel of QMEs.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

QME/AME processMixedpsyche

The WCJ found the QME's reporting was not substantial evidence and that the QME could not be rehabilitated due to unprofessional conduct and failure to apply correct apportionment law; the WCAB granted reconsideration and ordered a replacement panel of QMEs in psychology to resolve disputed issues.

From the decision · page 1Applicant seeks reconsideration of the July 3, 2024 Findings of Fact, Award, and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a firefighter during the period ending August 5, 2019, sustained industrial injury to her psyche. The WCJ found, in relevant part, that the reporting of Qualified Medical Evaluator (QME) Joseph R. Nevotti, Ph.D., did not constitute substantial medical evidence and that the deficiencies in the QME reporting could not be rehabilitated. Accordingly, the WCJ ordered Dr. Nevotti stricken as the QME and ordered the parties to consider the use of an Agreed Medical Evaluator or to obtain a new panel of QMEs.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

QME Joseph Nevotti testified that pre-existing asymptomatic conditions must currently impair job performance or daily living activities to be considered for apportionment.

Favours Defendant prevailed

This incorrect legal theory led the WCJ to find the QME's reporting not substantial evidence and unprofessional conduct, justifying replacement.

From the decision · page 7The QME has testified that although he has read the holding in Lindh, supra, 29 Cal.App.5th 1175, he does not understand it. (Ex. 13, Transcript of the Deposition of Jospeh Nevotti, Ph.D., dated February 14, 2024, at p. 53:21.) When asked whether he would consider preexisting asymptomatic conditions as part of his apportionment analysis, the QME stated that "I have to see empirical evidence that the person's either the person's job performance or activities of living, daily living, was in fact impaired prior to the date of injury... [i]f there's no evidence of impairment to job performance or activities of daily living prior to the date of injury, then there's no apportionment." (Id. at p. 57:18, italics added.) The QME further acknowledged the existence of asymptomatic conditions in the present matter, noting that applicant "had problems with depression and anxiety prior to her date of injury, but there was no evidence that it affected her job performance or activities of daily living prior to [the current injury], therefore it doesn't exist. It doesn't matter in terms of my decision." (Id. at p. 58:23.) The WCJ's Report observes, however,

QME's deposition testimony and emails showed bias and unprofessional conduct against defendant.

Favours Defendant prevailed

Supported the WCJ's decision to disqualify and replace the QME.

From the decision · page 2On February 14, 2024, the parties conducted part II of the deposition of Dr. Nevotti. On March 7, 2024, defendant filed a First Amended Petition for Order for Replacement Panel (Petition for Replacement Panel), again asserting that the QME had exhibited unprofessional conduct and bias against the defendant, that the QME had prejudged the matter, and that the QME had professed his unwillingness to apply a correct legal theory of apportionment. (Petition for Replacement Panel, at p. 7:13.) Defendant also asserted that the QME had issued unsolicited emails after the March deposition that evinced bias as described in Administrative Director (AD) Rule 41 (Cal. Code Regs., tit. 8, § 41), warranting the disqualification of the QME. (Id. at p. 10:7.) On June 25, 2024, the parties proceeded to trial on the sole issue of defendant's Petition for Replacement Panel. No testimony was heard, and the WCJ took the matter under submission the same day.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, 4663(a), (c)

Apportionment of permanent disability must be based on causation and comply with Labor Code section 4663.

The QME's apportionment analysis must be complete and based on correct legal theory to constitute substantial evidence.

From the decision · page 8We agree. Section 4663(a) provides that apportionment of permanent disability shall be based on causation. Section 4663(c) requires evaluating physicians to make an apportionment determination in order for their medical-legal report to be considered complete. In Nunes v. State of California, Dept. of Motor Vehicles5 (2024) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30] (Nunes I), we explained that section "4663(c) authorizes and requires the reporting physician to make an apportionment determination, and further prescribes the standards the physician must use." (Id. at p. 748.) In Escobedo v. Marshalls6 (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Board en banc) (Escobedo), we explained that the QME's apportionment analysis must account for "other factors both before and subsequent to the industrial injury," and may include disability that formerly could not have been apportioned, including apportionment to pathology, asymptomatic prior conditions, and retroactive prophylactic work restrictions. (Id. at p. 607, 611-612.) As en banc decisions, both Escobedo and Nunes are binding authority on all Appeals Board panels and WCJs.

Cal. Code Regs., tit. 8, 10955(a)

Removal of a QME is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if not granted.

The Appeals Board applies this standard to evaluate the petition for removal of the QME.

From the decision · page 6Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

ADJ14244361 · September 16, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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