Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4060
Labor Code section 4060(c) (2003) allowing each party to select a QME for compensability disputes
The WCJ concluded Dr. Miller's report was admissible under this statute due to the existence of a compensability dispute and a notice of denial of claim before the report date.
From the decision · page 6July 14, 2014. Accordingly, the WCJ concluded that the report was appropriately obtained under
the auspices of section 4060, which at the time of the claimed injury provided that for
compensability disputes, "each party may select a qualified medical evaluator to conduct a
comprehensive medical-legal evaluation." (Lab. Code, § 4060(c) (2003).) Accordingly, the WCJ
concludes "it is clear that [the Dr. Miller] report should have been admitted into evidence."
(Report, at p. 7.)
Labor Code sections 4061 and 4062
Labor Code sections 4061 and 4062 requiring objection to treating physician report before obtaining QME report
The WCJ initially excluded Dr. Miller's report for lack of objection under these sections but later found the report admissible under section 4060 due to compensability dispute.
From the decision · page 5We first address the issue of the admissibility of the July 14, 2014 reporting of applicant's
QME Dr. Miller. Defendant challenges the admissibility of the report as not having been obtained
pursuant to the requirements of sections 4061 or 4062. (Opinion on Decision, at p. 3.) Accordingly,
the parties placed in issue the admissibility and weight of the reporting of Dr. Miller at trial.
(Minutes of Hearing, dated August 27, 2018, at pp. 3:14; 4:6; 4:23.) The WCJ observed that
sections 4061 and 4062 required a party to object to a treating physician report prior to obtaining
a QME. (Opinion on Decision, at p. 3.) Here, the record reflected no objection to a treating
physician report, leading the WCJ to conclude that the reporting had been obtained outside the
requirements of section 4061 or 4062.
Labor Code sections 5701 and 5906
Labor Code sections 5701 and 5906 authorizing WCJ and Board to develop the record when medical evidence is not substantial
The WCJ and WCAB agreed that the psychiatric medical evidence was insufficient and ordered development of the record for psychiatric injury.
From the decision · page 7Additionally, it is well established that decisions by the Appeals Board must be supported
by substantial evidence. (Lab. Code, § 5903, 5952(d);Lamb v. Workmen's Comp. Appeals
Bd.(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310];Garza v. Workmen's Comp. Appeals
Bd.(1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500];LeVesque v. Workmen's Comp. Appeals
Bd.(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary
authority to develop the record when the medical record is not substantial evidence. (Lab. Code,
§ 5701, 5906;Tyler v. Workers' Comp. Appeals Bd.(1997) 56 Cal.App.4th 389 [62
Cal.Comp.Cases 924]; seeMcClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117
[63 Cal.Comp.Cases 261].) In our en banc decision inMcDuffie v.
McDuffie v. MTA (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc)
McDuffie v. MTA (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc)
The WCJ applied McDuffie to require supplemental psychiatric reports containing MMPI analysis to constitute substantial evidence.
From the decision · page 6The WCJ's Report agrees, noting that "once the parties have filed for reconsideration, the
trier of fact may then consider whether the duty to develop the record is required for accurate fact-
finding... [s]ince none of the psychologists wrote a report that constituted substantial evidence of
a mental injury, the McDuffie vs. MTA [(en banc, 2002) 67 CCC 138] case would apply and the
parties should be permitted to obtain supplemental reports from these doctors that contain an