ADJ12656490 — California WCAB decision

ADJ12656490 · April 11, 2022

The WCAB denied applicant's Petition for Reconsideration and granted defendant's Petition for Reconsideration, rescinding the WCJ's June 15, 2021 decision and issuing a new decision finding applicant remains bound by the AME agreement with Dr. Daniel Shalom and ordering discovery to continue with Dr. Shalom.

Issues decided

Medical opinions weighed

Authorities named

District office

Oakland

What the panel ordered

Applicant sought reconsideration of the Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration issued by the WCAB on November 4, 2021, which had granted defendant's Petition for Reconsideration of the WCJ's June 15, 2021 decision. The WCAB majority found applicant remains bound by the AME agreement and ordered discovery to continue with Dr. Shalom.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold November 4, 2021.

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.

Jurisdiction / venueDefendant prevailedhead · left shoulder · low back · left arm · psyche

The Appeals Board found that the parties remain bound by the AME agreement per Labor Code section 4062.2(f) which prohibits unilateral withdrawal from the AME agreement without mutual written consent, and ordered discovery to continue with Dr. Shalom.

The facts that decided it

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

The parties agreed to use Dr. Daniel Shalom as the AME in neurology.

Favours Defendant prevailed

This agreement triggered the application of Labor Code section 4062.2(f) prohibiting unilateral withdrawal from the AME agreement.

From the decision · page 8On October 22, 2020, applicant sent an email to defendant stating: "Michael kassman [sic] for neuro?" (Defendant's Exhibit A, Emails between applicant attorney and defense attorney, October 23, 2020.) The following day, defendant's attorney emailed in response: "Here is the list. Let me know any you would agree to. Otherwise we could simply stipulate to a second panel in Neurology. As I understand Wayne Anderson is not serving as a QME anymore." (Id.) Applicant responded the same day by email saying "shalom?" (Id.) On October 29, 2020, defendant sent an email to applicant's attorney stating: "I have authority for Dr. Shalom as an AME in neurology." (Defendant's Exhibit B, Emails between applicant attorney and defense attorney, October 29, 2020.) Applicant responded that day by saying "Great." (Id.)

Applicant sought to withdraw from the AME agreement before any evaluation with Dr. Shalom took place.

Favours Defendant prevailed

The Appeals Board rejected the argument that withdrawal was permitted before evaluation under the statute and prior panel decision Yarbrough, finding the statute prohibits unilateral withdrawal without mutual consent.

From the decision · page 12Applicant in this matter wishes to withdraw from the agreement to use Dr. Shalom as an AME. The record reflects that the parties agreed to use Dr. Shalom as an AME in neurology, but no evaluation with Dr. Shalom had taken place before applicant withdrew from this agreement. There was only one day between the AME agreement and applicant's request to withdraw from it. Per the language of section 4062.2(f) and the analysis in Yarbrough, applicant should be permitted to withdraw from the agreement to an AME.

ADJ12656490 · April 11, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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