ADJ15590671 · September 25, 2025

The Appeals Board found that the WCJ erred in striking the QME reports as not substantial medical evidence and that removal was warranted due to potential prejudice and delay; however, the reports remain in the record but are not substantial evidence, and a replacement QME was properly ordered.

From the decision · page 1Defendant has filed a petition for removal from the order vacating submission, striking medical reports, and order to develop the record ("Orders") issued on May 31, 2024, by the workers' compensation administrative law judge (WCJ). The WCJ vacated submission of this matter, ordered the reporting of the current qualified medical evaluator (QME) stricken because it did not constitute substantial medical evidence, and ordered development of the record with the parties either agreeing upon an agreed medical evaluator or a replacement QME, but absent an agreement, the WCJ would appoint a regular physician pursuant to Labor Code section 5701.

WCJ found current QME reports inaccurate, inconsistent, or incomplete, justifying record development.

Favours Defendant prevailed

This finding supported the decision to order a replacement QME and deny the reports as substantial evidence.

From the decision · page 2Here, and for the reasons discussed by the WCJ in the Report, the WCJ properly established that the current reports are inaccurate, inconsistent or incomplete, and thus defendant has not met

Striking QME reports could cause substantial prejudice or irreparable harm by delaying the case.

Favours Defendant prevailed

This justified granting removal to prevent delay and prejudice.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, the WCJ errantly ordered the reporting of the current QME stricken from the record, which could cause the parties to conduct substantial discovery without the use of these records, thereby delaying the progress of the case. Accordingly, we conclude that defendant has established substantial prejudice or irreparable harm under the order striking evidence.

Reports of Dr. Darakjian are not substantial medical evidence and returning to Dr. Darakjian for additional reporting would not be fruitful.

The Appeals Board amended the WCJ order to state that Dr. Darakjian's reports are not substantial medical evidence and that returning to him is not fruitful.

From the decision · page 4(2) The reports of Dr. Darakjian are not substantial medical evidence and it does not appear that returning to Dr. Darakjian for additional reporting would be fruitful.

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

The Appeals Board granted removal because the WCJ's striking of QME reports could cause prejudice and delay.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, the WCJ errantly ordered the reporting of the current QME stricken from the record, which could cause the parties to conduct substantial discovery without the use of these records, thereby delaying the progress of the case. Accordingly, we conclude that defendant has established substantial prejudice or irreparable harm under the order striking evidence.

Lab. Code, §§ 5701, 5906

The WCJ and Board may obtain additional evidence when medical evidence is not substantial or to provide due process.

The Board affirmed the WCJ's order to develop the record with a replacement QME due to insubstantial medical evidence.

From the decision · page 2Whether a report is substantial evidence goes to the weight of the evidence, not the admissibility. (Cal. Code Regs., tit. 8, § 10682(c).) Thus, upon finding a report insubstantial, the report is not stricken from the record. The sole question here is how to develop the record further to ensure that the decision of the Appeals Board is based upon substantial evidence. To that extent, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v.

McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Before ordering augmentation of the medical record, the WCJ or Board must establish that specific medical opinions are deficient (inaccurate, inconsistent, or incomplete).

The WCJ properly found Dr. Darakjian's reports inaccurate, inconsistent, or incomplete, justifying record development.

From the decision · page 2Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete. (Citations.)" (McDuffie, supra, 67 Cal.Comp.Cases at 141.)

WCJ erred in striking QME reports as not substantial medical evidence, which could cause delay and prejudice

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, the WCJ errantly ordered the reporting of the current QME stricken from the record, which could cause the parties to conduct substantial discovery without the use of these records, thereby delaying the progress of the case. Accordingly, we conclude that defendant has established substantial prejudice or irreparable harm under the order striking evidence.