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MEDICAL EVIDENCE

The WCAB “favors the production of medical evidence in the form of written reports. Direct examination of a medical witness will not be received at a trial except upon a showing of good cause.” Rule §10606 [Note slight changes to this reg that are not yet posted on DWC website but appear in this document.]

SB 863 changed Labor Code §4605 to require a Qualified Medical Evaluator or Primary Treating Physician in addition to the self-procured evidence: "Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion." This prevents self-procured evidence from being the sole basis for an award of compensation and thus limits its value.

Also see Evidence and Medical-Legal Reports
Label Item Links Comments
Labor Code Labor Code §5703 details what is admissible

Labor Code §4628 imposes requirements on medical-legal evaluators. Subsection (e) provides: "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." See Scheffield Medical Group decision below.
LC §5703

LC §4628
 
Regulations/Rules Evidence and reports: "A written communication from a physician containing any information listed in Section 10606 that is contained in any record maintained by the employer in the employer's capacity as employer will be deemed to be a physician's report and shall be served as required in Sections 10608 and 10615."

Continuing duty to serve reports

Failure to serve reports

Filing and service of medical and medical-legal reports

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.

Reports sent to QME/AME: Rule 35

8 CCR §10616






8 CCR §10615

8 CCR §10622

8 CCR §10608


8 CCR §10606




8 CCR §10606



8 CCR §10606








8 CCR §35

 









Cases 

Escobedo: Leading case on substantial evidence

Peter Kiewit Sons v. Industrial Acci. Com.: "Where an issue is exclusively a matter of scientific medical knowledge, expert evidence is essential...."

Scheffield Medical Group v. WCAB (1999) 70 Cal. App. 4th 868: "That section 4628, subdivisions (a) through (e) is a strict liability statute is obvious from its plain language, at least insofar as the admissibility of a medical-legal report is concerned.

Valdez v. WCAB (2013): Supreme Court uplheld the Court of Appeal's reversal of the en banc WCAB opinion: “Section 4605 has long permitted employees to consult privately retained doctors at their own expense, and the amendments enacted by Senate Bill 863 maintain that right. The amendments also include provisions strengthening the role of article 2.3’s independent medical review process, enhancing the effectiveness of MPNs, and limiting employers’ liability for the costs of out-of-network treatment. But none of the new provisions require MPNs to be exclusive providers of medical treatment....We conclude that section 4616.6 restricts the admission of medical reports only in proceedings under article 2.3 to resolve disputes over diagnosis and treatment within an MPN.”

Escobedo en banc

Peter Kiewit Sons v. Industrial Acci. Com


Scheffield Medical Group v. WCAB

 

 

Valdez v. WCAB

 
Forms    
Websites To access the free Reference Manual on Scientific Evidence, Third Edition, click here.  
Practice Tips   Downloadable admissible evidence checklist


Downloadable substantial evidence checklist
Admissible Evidence Checklist

Substantial Evidence Checklist
 
Publications
 
Articles
Supreme Court Affirms COA in Valdez Valdez issues Does this open the door to admissible LC §4050 reports?
Magazine Articles Substantial Evidence and Science, Law and Logic with downloadable checklist by Marjory Harris, Esq.

Evidence-Based Medicine by Steven D. Feinberg, M.D.
Substantial Evidence

Feinberg on EBM

 
Roundtable  
Miscellaneous    

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