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MEDICAL-LEGAL REPORTS

Medical-legal reports are defined by 8 CCR §9793:

“Comprehensive medical-legal evaluation” means an evaluation of an employee which (A) results in the preparation of a narrative medical report prepared and attested to in accordance with Section 4628 of the Labor Code, any applicable procedures promulgated under Section 139.2 of the Labor Code, and the requirements of Section 10606 and (B) is either:

(1) performed by a Qualified Medical Evaluator pursuant to subdivision (h) of Section 139.2 of the Labor Code, or

(2) performed by a Qualified Medical Evaluator, Agreed Medical Evaluator, or the primary treating physician for the purpose of proving or disproving a contested claim, and which meets the requirements of paragraphs (1) through (5), inclusive, of subdivision (g).” [Note that renumbering of the reg put these requirements in (h)]

The report is “for the purpose of proving or disproving a contested claim” as specified in Labor Code §4620:

“(b) A contested claim exists when the employer knows or reasonably should know that the employee is claiming entitlement to any benefit arising out of a claimed industrial injury and one of the following conditions exists:
(1) The employer rejects liability for a claimed benefit.
(2) The employer fails to accept liability for benefits after the expiration of a reasonable period of time within which to decide ifit will contest the claim.
(3) The employer fails to respond to a demand for payment of benefits after the expiration of any time period fixed by statute for the payment of indemnity.”

There are several methods for obtaining a medical-legal report: Unrepresented workers must follow the process in Labor Code §4062.1; Represented workers must follow the process in Labor Code §4062.2. If the worker requires a report on a disputed issue, it can be obtained too from the Primary Treating Physician using the method outlined by Sam Swift, Esq. in “How to get the PTP Paid for a Comprehensive Medical-Legal Evaluation” published in getMedLegal Magazine. Essentially, the “report is obtained at the request of a party or parties, the administrative director, or the appeals board for the purpose of proving or disproving a contested claim and addresses the disputed medical fact or facts specified by the party, or parties or other person who requested the comprehensive medical-legal evaluation report.”

Statutes governing medical-legal reports include Labor Code §4060, which SB 863 did not change: It applies to disputes over the compensability of any injury (in other words, denied claims rather than denied body parts):

“Neither the employer nor the employee shall be liable for any comprehensive medical-legal evaluation performed by other than the treating physician, except as provided in this section. However, reports of treating physicians shall be admissible.”

LC §4060 goes on to provide that if If a medical evaluation is required to determine compensability at any time after the claim form is filed, the parties must follow the process in LC §4062.1 or 4062.2.

SB 863 made significant changes to Labor Code §4061, which applies to situations where “either the employee or employer objects to a medical determination made by the treating physician concerning the existence or extent of permanent impairment and limitations or the need for future medical care.” The parties must look to LC §4062.1 or 4062.2 for the procedures for obtaining a Qualified Medical Evaluator or, if the worker is represented, they can agree to an Agreed Medical Evaluator. The changes involve not allowing the AME or QME to discuss the need for continuing care, but limiting them to discussing only future medical care. This was part of the new process whereby utilization review was extended into Independent Medical Review and the issue of current care was removed from the Workers' Compensation Appeals Board to the DWC IMR and anonymous doctors under contract through Maximus. In sum, only the treating physician can examine and write about current care.

Another change to LC §4061 provided in subsection (d)(1), in relevant part:

“Within 30 days of receipt of a report from a qualified medical evaluator who has evaluated an unrepresented employee, the unrepresented employee or the employer may each request one supplemental report seeking correction of factual errors in the report. Any of these requests shall be made in writing.”

A confusing subsection was altered by substituting “and” for “or”:

“(i) No issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the
subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator. With the exception of an evaluation or evaluations prepared by the treating physician or physicians, no evaluation of permanent impairment and limitations resulting from the injury shall be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be admissible in any proceeding before the appeals board.”

Labor Code §4062 addresses the situation where “either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610.” In orther words, where the claim is compensable and the issue is not permanent disability, or continuing or future care. This would leave disputed body parts and compensable consequences, temporary disability, release from care, return to work issues, etc. The parties must follow the process in LC §4062.1 or 4062.2. If the dispute concerns a utilization review decision to modify, delay or deny a request for authorization of a medical treatment recommendation made by a treating physician, the matter goes to Independent Medical Review. If the employee objects to the diagnosis or recommendation for medical treatment by a physician within the employer's medical provider network, the MPN IMR process must be followed.

The times for when a medical-legal evalution is allowed are specified in several Labor Code sections. Labor Code §4621 provides, in relevant part:

“(b) Except as provided in subdivision (c) and Sections 4061 and 4062, no comprehensive medical-legal evaluations, except those at the request of an employer, shall be performed during the first 60 days after the notice of claim has been filed pursuant to Section 5401, and neither the employer nor the employee shall be liable for any expenses incurred for comprehensive medical-legal evaluations performed within the first 60 days after the notice of claim has been filed pursuant to Section 5401.
(c) Comprehensive medical-legal evaluations may be performed at any time after the claim form has been filed pursuant to Section 5401 if the employer has rejected the claim.”

There are time limits in LC §§4060, 4061 and 4062

To eliminate ghost-writing of reports and ensure that only persons qualified to examine employees were preparing medical-legal reports, the Legislature enacted Labor Code §4628 as part of the 1989 reforms. Subsection (e) provided a harsh penalty for any lapses: “Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.” As the Court of Appeals noted in Scheffield Medical Group, Inc. v. WCAB (1999) 70 Cal.App.4th 868, “Consistent with the nature and purpose of the statute, the Legislature drafted a relatively unambiguous statute leaving little room for equitable considerations.”

See, too Medical Evidence, Medical-Legal Expenses, Agreed Medical Evaluator, Qualified Medical Evaluator, and Primary Treating Physician

Label Item Links Comments
Labor Code Labor Code §4628: physician's duties regarding medical-legal reports LC §4628  
  See other sections noted above.
Regulations/Rules definition of “Comprehensive medical-legal evaluation”

What medical-legal reports should contain

Filing and service of medical and medical-legal reports

8 CCR §9793

8 CCR §10606

8 CCR §10608

 

 

  The WCAB favors the production of medical evidence in the form of written reports. "Failure to comply with (a) through (o) will be considered in weighing the evidence.

In death cases, the reports of non-examining physicians may be admitted into evidence in lieu of oral testimony.

All medical-legal reports shall comply with the provisions of Labor Code Section 4628. Except as otherwise provided by the Labor Code, including Labor Code Sections 4628 and 5703, and the rules of practice and procedure of the Appeals Board, failure to comply with the requirements of this section will not make the report inadmissible but will be considered in weighing the evidence.
8 CCR §10606  
Cases In Scheffield Medical Group, Inc. v. WCAB (1999) 70 Cal.App.4th 868, the Court of Appeals noted that “Section 4628 was enacted in 1989 as part of the overall reform package to ensure the reliability of the medical evaluation which it hoped to achieve by controlling the quality of the medical-legal report. The Legislature referred to section 4628 as an anti-ghostwriting statute.” It strictly construed LC §4628 and disallowed payment for failure to comply with its provisions. Scheffield Medical Group, Inc. v. WCAB  
Forms    
Websites  
Practice Tips    
Magazine Articles “How to get the PTP Paid for a Comprehensive Medical-Legal Evaluation” by Sam Swift, Esq. Get PTP Paid for a CMLE  
Roundtable  
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