ADJ10304125 — California WCAB decision

What the panel ordered

Findings and Order of January 21, 2021 rescinded; case remanded to WCJ for further proceedings and new decision.

Petition for reconsideration granted; Findings and Order of January 21, 2021 rescinded; matter returned to WCJ for further proceedings and new decision.

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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.

Discrimination under Labor Code §132aRemandedlumbar spine

The Appeals Board found the record incomplete and that the WCJ erred in excluding medical and vocational evidence, requiring further proceedings to consider all relevant evidence.

From the decision · page 3Turning to the merits, we are persuaded that the WCJ erred in denying admission of the treatment records of NMCI. In his Report, the WCJ provides two reasons for exclusion of these records. First, applicant stipulated that Dr. Martinovsky is the primary treating physician, not NMCI. Secondly, the WCJ stated that applicant was referred to NMCI by his attorney, not by Dr. Martinovsky; thus the NMCI records represent an improper attempt by applicant's attorney to obtain medical evidence in rebuttal to the PQME reports of Dr. Ciepiela. (See Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009, 1016 (80 Cal.Comp.Cases 1256) ("Batten") [Labor Code sections 4061 and 4605 preclude admission of an expert's report retained solely for the purpose of rebutting a PQME's opinion.].)

The facts that decided it

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

Applicant's prior stipulation to Dr. Martinovsky as primary treating physician was not valid for the later trial; NMCI's Dr. Rollins was primary treating physician at relevant times.

Favours Applicant prevailed

This fact led the Board to conclude the WCJ erred in excluding NMCI medical records based on the outdated stipulation.

From the decision · page 3We disagree with the WCJ on both points. Applicant did stipulate to Dr. Martinovsky as his primary treating physician in the trial of his first Petition for New and Further Disability on May 16, 2019. That trial resulted in the WCJ's July 18, 2019 Findings and Order denying new and further disability, with the Board affirming the WCJ's decision on October 4, 2019. In the meantime, applicant filed his second Petition for New and Further Disability, which eventually proceeded to trial before the WCJ on November 2, 2020. At that trial, applicant notably did not stipulate to Dr. Martinovsky as his primary treating physician, and nothing in the record shows the

Applicant began treatment with Dr. Rollins/NMCI before PQME Ciepiela's reevaluation, showing NMCI records were not obtained solely to rebut PQME reports.

Favours Applicant prevailed

This chronology disproved the WCJ's basis for excluding NMCI records as improper rebuttal evidence.

From the decision · page 4We also disagree with the WCJ's conclusion that the NMCI reports were obtained solely to rebut Dr. Ciepiela's PQME reports, in violation of Batten. As a chronological matter, applicant began treating with Dr. Rollins of NMCI on November 1, 2019. (See applicant's proposed exhibit 21.) However, PQME Ciepiela did not see applicant for a reevaluation concerning applicant's second claim of new and further disability until January 13, 2020. Thus the chronology shows that applicant first visited Dr. Rollins and NMCI on November 1, 2019 to get treatment, not to obtain reports to rebut Dr. Ciepiela's later PQME reports dated January 13, 2020 and February 24, 2020. Further, the June 15, 2020 report of Dr. Jacobs, of NMCI, is addressed to defendant's claims representative and the report is designated as a treating physician's permanent and stationary report (PR-4). (See applicant's proposed exhibit 10.) The same report identifies Dr. Rollins as the primary treating physician at the time, with Dr. Jacobs evaluating the applicant as a secondary treating physician.

Dr. Ciepiela's medical opinion was questioned for bias and legal errors, but not rejected outright; further record development was allowed.

Favours neutral

This influenced the Board to remand for further proceedings to clarify and resolve medical issues.

The rules the panel named

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

Labor Code sections 5900 et seq.

Labor Code sections 5900 et seq. govern petitions for reconsideration and reopening.

The Board treated the petition for reconsideration as proper and rescinded the prior Findings and Order.

From the decision · page 3A decision issued by the Appeals Board may address a hybrid of both threshold and interlocutory issues. If a party challenges a hybrid decision, the petition seeking relief is treated as a petition for reconsideration because the decision resolves a threshold issue. However, if the petition challenging a hybrid decision disputes a determination made on an interlocutory question, then the Appeals Board will evaluate the issues raised by the petition under the removal standard applicable to non-final decisions, i.e., significant prejudice or irreparable harm. (Cal. Code Regs., tit. 8, § 10955.)

Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009

Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009 precludes admission of expert reports retained solely to rebut a PQME's opinion.

The Board found the NMCI records were not obtained solely to rebut PQME reports and thus admissible.

From the decision · page 3Turning to the merits, we are persuaded that the WCJ erred in denying admission of the treatment records of NMCI. In his Report, the WCJ provides two reasons for exclusion of these records. First, applicant stipulated that Dr. Martinovsky is the primary treating physician, not NMCI. Secondly, the WCJ stated that applicant was referred to NMCI by his attorney, not by Dr. Martinovsky; thus the NMCI records represent an improper attempt by applicant's attorney to obtain medical evidence in rebuttal to the PQME reports of Dr. Ciepiela. (See Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009, 1016 (80 Cal.Comp.Cases 1256) ("Batten") [Labor Code sections 4061 and 4605 preclude admission of an expert's report retained solely for the purpose of rebutting a PQME's opinion.].)

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 holds medical treatment is not apportionable.

The Board noted Dr. Ciepiela's incorrect suggestion that medical treatment is apportionable and allowed further development of the record.

ADJ10304125 · January 31, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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