California Court Rejects Report from Expert Retained Solely to Rebut Opinion of Agreed Medical Expert

In a recent California Court of Appeal case, an injured worker requested that the court address what she perceived as an inconsistency in the workers’ compensation laws regarding admissible evidence.  The Legislature has declared that the opinion of a privately retained expert who has evaluated an injured worker may not be admitted as evidence before the Workers’ Compensation Appeal Board.

Margaret Batten alleged that she suffered a workplace injury in the course and scope of her employment as a registered nurse for Long Beach Memorial Hospital. She claimed injuries to her jaw, knees, neck, and lower back. She also claimed that she suffered psychological harm due to her physical injuries.

An initial evaluation by a psychiatric panel’s qualified medical examiner, Dr. Joseph Stapen, suggested that Ms. Batten’s injuries were not compensable because they were not caused by industrial factors.  The Workers’ Compensation Judge authorized Ms. Batten to retain her own qualified medical expert, at her own expense, according to Labor Code section 4064(d). Dr. Gary Stanwyck opined that Ms. Batten’s psychiatric condition was due to work-related injuries, and therefore it was compensable.

The Workers’ Compensation Judge admitted Dr. Stanwyck’s report into evidence and found it “convincing and persuasive.” The court found that Ms. Batten sustained an injury to her psyche arising out of and in the course of employment.

Long Beach Memorial Hospital then filed a petition for reconsideration on the grounds that the report of Dr. Stanwyck was inadmissible and admitted in error.  They argued the only admissible report regarding Ms. Batten’s psychiatric claim was the report by Dr. Stapen, and the finding on disability should be reversed.

The Board granted the request for reconsideration and issued an opinion stating that Dr. Stanwyck’s report was not admissible, and the WCJ should have relied on Dr. Stapen’s opinion. They based this opinion on section 4064(d):  “medical-legal evaluations obtained outside the procedures of sections 4060, 4061, 4062, 4062.1, and 4062.2 are not admissible.”

Ms. Batten sought reconsideration and argued the Board erred in finding Dr. Stanwyck’s report inadmissible.  The Board granted the request and then issued an opinion affirming its earlier decision.  Ms. Batten then sought review from the Court of Appeals.

The appellate court first reiterated the statute requiring that an employee represented by an attorney must use the procedure set forth in section 4062.2 of the Labor Code if a medical evaluation is required to establish compensability after filing a workers’ compensation claim. The court stated that the Workers’ Compensation Board held the procedures set forth in section 4062.2 are the “exclusive” method for obtaining a medical evaluation of compensability because the language in the statutes is mandatory. Here, Dr. Stapen was selected using the procedures in section 4062.2.

The court rejected Ms. Batten’s argument that section 4064 permits the admission of her privately retained expert’s report.  The court stated that section 4061(i) prevents admitting reports obtained by privately retained experts for the purpose of rebutting the opinion of a qualified medical expert. Furthermore, the court stated that the Legislature would have made it clear if it intended to allow the admission of additional medical reports for the purpose of rebutting the opinion of the qualified medical expert.

The California Court of Appeals affirmed the Workers’ Compensation Board’s decision.

At Sharifi Firm, our work injury attorneys help employees receive compensation for their injuries.  Contact our office at 1-866-422-7222 for a free consultation.

More Blog Posts:

California Court of Appeals Holds Cumulative Injuries within the State Provide Legitimate Relationship to Invoke Worker’s Compensation Laws, Southern California Injury Lawyer Blog, October 7, 2015

California Court of Appeal Rejects Injured Employee’s Attempt to Rebut Her Designated Disability Score, Southern California Injury Lawyer Blog, September 4, 2015

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