ADJ9595324 — California WCAB decision

What the panel ordered

Decision after reconsideration issued on April 7, 2025, rescinding the January 7, 2025 decision and substituting findings and orders including replacement of Dr. John Finkenberg as orthopedic QME.

Petition for reconsideration granted to defer issues related to alleged violations of Labor Code section 4628; otherwise, the WCJ's January 7, 2025 decision is affirmed and restated.

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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.

Jurisdiction / venueDefendant prevailedorthopedic

The violations of section 4062.3 merited issuance of a replacement panel of QMEs, so the WCJ's findings and order for replacement were affirmed and restated.

From the decision · page 6However, because we agree with the WCJ's analysis with respect to the alleged violations of section 4062.3, and because we further agree that the violations merit the issuance of a replacement panel of QMEs, we will otherwise affirm and, for purposes of clarity, restate the WCJ's January 7, 2025 Findings and Order.

Jurisdiction / venue

The facts that decided it

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

Service of the Report and transmission of the case to the Appeals Board occurred on February 5, 2025, providing notice to the parties of the 60-day period for acting on the petition for reconsideration.

Favours neutral

Ensured the petition for reconsideration was timely acted upon within the statutory 60-day period.

From the decision · page 2Here, according to the proof of service for the Report and Recommendation by the workers' compensation administrative law judge, the Report was served on February 5, 2025, and the case was transmitted to the Appeals Board on February 5, 2025. Service of the Report and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties were provided with the notice of transmission required by section 5909(b)(1) because service of the Report in compliance with section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period on February 5, 2025.

The record did not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations, nor an opportunity to be heard on the issue.

Favours Applicant prevailed

Required deferral of the section 4628 violation issue to protect due process rights.

From the decision · page 5Here, the record does not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations raised by the parties, nor does it appear the physician been afforded an opportunity to be heard on the issue. Accordingly, we believe that the order finding a section 4628 violation must be rescinded and the issue deferred to allow the parties to provide Dr. Finkenberg with the requisite notice and opportunity to be heard. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp.

Defendant failed to provide applicant with copies of witness statements sent to Dr. Finkenberg, violating Labor Code section 4062.3.

Favours Applicant prevailed

Supported affirming the WCJ's findings and ordering replacement of Dr. Finkenberg as QME.

From the decision · page 6FINDINGS OF FACT 1. The issue of whether Panel Qualified Medical Evaluator, Dr. John Finkenberg

The rules the panel named

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

Labor Code section 4062.3

Labor Code section 4062.3 prohibits certain communications with QMEs; violations may result in replacement of QME.

Applied to affirm findings of violations and order replacement of Dr. Finkenberg as QME.

From the decision · page 6However, because we agree with the WCJ's analysis with respect to the alleged violations of section 4062.3, and because we further agree that the violations merit the issuance of a replacement panel of QMEs, we will otherwise affirm and, for purposes of clarity, restate the WCJ's January 7, 2025 Findings and Order.

Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197

Due process requires notice and a meaningful opportunity to present evidence regarding the issues.

Applied to the issue of section 4628 violation notice and opportunity to be heard.

From the decision · page 4Parties to a workers' compensation claim are entitled to due process under the California Constitution and the United State Constitution. (Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197, 201.) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197, 201, citing Rea v. WCAB (2005) 127 Cal.App.4th 625, 643.) A workers' compensation judge may only address issues that have been properly raised and submitted at trial. (Lamin v. City of Los Angeles (2004) 69 Cal.Comp.Cases 1002, 1006.)

Labor Code section 4628

Labor Code section 4628 requires evaluating physicians to take complete medical history, review prior records, and disclose assistance in report preparation.

Applied to determine compliance of Dr. Finkenberg's reports with section 4628.

From the decision · page 5Section 4628 requires the evaluating physician to take a complete medical history from the applicant, to review and summarize the prior medical record, and to compose and draft the conclusions of the report. Where the initial outline of a patient's history or excerpting of the applicant's medical record is accomplished by someone other than the physician, the physician must review the excerpts or summary, and make relevant inquiry of the applicant, as well as disclose the name and qualifications of those persons assisting in the nonclerical preparation of the report. (Lab. Code, § 4628(c).)

ADJ9595324 · April 7, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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