Court Blocks Attempt to Circumvent the Med-Legal Process

On October 28, 2015, the Second District Court of Appeal, Division Six, published its opinion in Margaret Batten v. Long Beach Memorial Hospital, B260916, in which it determined that a self-procured medical-legal report cannot rebut the opinion of a Panel Qualified Medical Evaluator or Agreed Medical Evaluator when the report was obtained in violation of Labor Code Sections 4060 and 4062.

Batten suffered an injury to her jaw, shoulders, knees, neck and low back while employed as a nurse, and claimed a psychological injury as a compensable consequence of her physical injuries. To address the psychiatric issues, the parties selected a Qualified Medical Evaluator (QME) from a panel of Qualified Medical Evaluators obtained from the Division of Workers’ Compensation in accordance with Labor Code Section 4062.2. The QME determined that Batten’s emotional complaints were not predominantly caused by the physical injury and, therefore, she was not entitled to workers’ compensation benefits for the psychological portion of her claim. Batten self-procured the opinion of a medical-legal psychiatrist at her own expense, who determined that Batten’s psychological complaints were predominantly caused by industrial factors. Batten offered this opinion into evidence at trial and the WCJ relied upon Batten’s expert to find the psychological injury compensable. Defendant petitioned for reconsideration and the WCAB reversed the trial judge. Batten filed a petition for writ.

Batten asserted that Labor Code Section 4064(d) supported her contention that her privately retained report was admissible in evidence and could be relied upon by the trier of fact. That statute includes both a prohibition on imposing costs for medical-legal reports not obtained in accordance with 4062 on the defendant, and the following: “However, no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense.” In resolving whether that sentence implies the admissibility of such a report, the Court concluded that Labor Code section 4061(i) specifically bars the admission into evidence of independently retained expert opinions obtained outside of Labor Code sections 4062.1 or 4062.2. The Court also acknowledged that the opinion of the primary treating physician is always admissible into evidence.

As the Court points out, Batten is not the first case on the subject. In 2006, the WCAB issued a significant panel decision in Ward v. City of Desert Hot Springs in which it reached a similar conclusion. While Batten’s attorney may appeal the decision to the Supreme Court, in order to be successful, she will have to overcome a history of decisions that limit the number of medical-legal reports that may be self-procured by the parties to prove a contested issue.

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November 9, 2015