ADJ17527839 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board denied the Petition for Reconsideration and Removal, affirming the WCJ's findings and orders.

Defendant filed a Petition for Reconsideration and in the alternative Petition for Removal challenging the WCJ's Joint Findings and Orders issued May 24, 2024.

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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.

Medical treatment / UR / IMRApplicant prevailedthoracic spine · lumbar spine · cervical spine · right knee · right leg · right foot

The WCJ found defendant's strike of Dr. Arbi Mizaians was timely, so defendant is not liable for his report costs, but the report is admissible as self-procured medical reporting under Labor Code 4605 and may be relied upon if it meets the substantial medical evidence threshold.

From the decision · page 6The Court found defendant's strike of Dr. Arbi Mizaians was timely and therefore defendant is not liable for the cost of reports issued by Dr. Arbi Mizaians. However, the Court also found pursuant to Labor Code 4605 applicant has the right to obtain medical reporting, at his or her own expense, of a consulting physician or any attending physicians whom he or she desires; and therefore, Dr. Arbi Mizaians medical reporting was found to be admissible and may be relied upon to issue a final finding subject to the reporting meeting the substantial medical evidence threshold. Following review of all the evidence the Court found sanctions under Labor Code 5813 are not warranted at this time, and Ordered the matter off calendar. In response Defendant filed the pending Petition for Reconsideration and in the alternative Petition for Removal.

The facts that decided it

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

The initial Panel QME list #7574199 was properly obtained and is controlling, while the second Panel QME list #7575297 was invalid due to lack of clear agreement between parties.

Favours Applicant prevailed

This fact led to the denial of defendant's Petition for Reconsideration and Removal regarding the controlling QME panel list.

From the decision · page 6Prior to Trial the parties' attempted to resolve the issue of which Panel QME list is controlling by agreeing to use the second Panel QME list# 7575297 and agreeing Panel #7574199 is moot and invalid (Exhibit H). However, based on the submitted evidence including emails between the parties it remains unclear why parties agreed to use the second Panel QME list #7575297 instead of the initial Panel QME list # 7574199. Additionally, the emails between the parties leave the reader unclear as to whether applicant had the option to schedule the Panel QME exam with any of the three physicians listed on Panel QME list #7575297.

Defendant's strike of Dr. Arbi Mizaians was timely, so defendant is not liable for his report costs, but the report is admissible as self-procured medical reporting under Labor Code 4605.

Favours Applicant prevailed

This fact supported the finding that Dr. Arbi Mizaians' medical report is admissible evidence despite the strike.

From the decision · page 6The Court found defendant's strike of Dr. Arbi Mizaians was timely and therefore defendant is not liable for the cost of reports issued by Dr. Arbi Mizaians. However, the Court also found pursuant to Labor Code 4605 applicant has the right to obtain medical reporting, at his or her own expense, of a consulting physician or any attending physicians whom he or she desires; and therefore, Dr. Arbi Mizaians medical reporting was found to be admissible and may be relied upon to issue a final finding subject to the reporting meeting the substantial medical evidence threshold. Following review of all the evidence the Court found sanctions under Labor Code 5813 are not warranted at this time, and Ordered the matter off calendar. In response Defendant filed the pending Petition for Reconsideration and in the alternative Petition for Removal.

There was no clear agreement or evidence of bad faith by applicant's attorney in scheduling the initial QME exam with Dr. Mirzaians.

Favours Defendant prevailed

This fact led to the denial of sanctions against applicant's attorney.

From the decision · page 6The Court found defendant's strike of Dr. Arbi Mizaians was timely and therefore defendant is not liable for the cost of reports issued by Dr. Arbi Mizaians. However, the Court also found pursuant to Labor Code 4605 applicant has the right to obtain medical reporting, at his or her own expense, of a consulting physician or any attending physicians whom he or she desires; and therefore, Dr. Arbi Mizaians medical reporting was found to be admissible and may be relied upon to issue a final finding subject to the reporting meeting the substantial medical evidence threshold. Following review of all the evidence the Court found sanctions under Labor Code 5813 are not warranted at this time, and Ordered the matter off calendar. In response Defendant filed the pending Petition for Reconsideration and in the alternative Petition for Removal.

The rules the panel named

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

Labor Code Section 5900

Petition for Reconsideration is the appropriate mechanism to challenge a final order, decision, or award.

Applied to determine the proper procedure for challenging the WCJ's final order.

From the decision · page 6A Petition for Reconsideration is the appropriate mechanism to challenge a final order, decision, or award (Labor Code Section 5900). An order that resolves or disposes of the substantive rights and liabilities of those involved in a case is a final order. See Maranian v. Workers' Compensation Appeals Board (2000) 81 Cal. App. 4th 1068 [65 Cal. Comp. Cases 650; Safeway Stores, Inc. v. Workers' Compensation Appeals Board (Pointer) (1980) 104 Cal. App. 3d 528 {45 Cal. Comp Cases 410].

Title 8 Cal. Code Regulations, Section 10955(a)

Removal is an extraordinary remedy to challenge interim and non-final orders, requiring demonstration of substantial prejudice or irreparable harm.

Applied to evaluate defendant's Petition for Removal as an extraordinary remedy.

From the decision · page 6Removal is an extraordinary remedy that may be requested to challenge interim and non-final orders issued by a workers' compensation judge (Cortez v. Workers' Compensation Appeals Board (2006) 136 Cal. App. 4th 596,600 fn 5, [71 Cal. Comp.Cases 155, 157, fn 5]; Kleeman v. Workers' Compensation Appeals Board (2005) 127 Cal. App. 4th 274,281, fn 2 [70 Cal. Comp. Cases 133, 136, fn 2]. The petitioning party must demonstrate that substantial prejudice or irreparable harm

Labor Code 4605

Labor Code 4605 allows an applicant to obtain medical reporting at their own expense from consulting or attending physicians.

Applied to find Dr. Arbi Mizaians' medical report admissible as self-procured medical reporting.

From the decision · page 6The Court found defendant's strike of Dr. Arbi Mizaians was timely and therefore defendant is not liable for the cost of reports issued by Dr. Arbi Mizaians. However, the Court also found pursuant to Labor Code 4605 applicant has the right to obtain medical reporting, at his or her own expense, of a consulting physician or any attending physicians whom he or she desires; and therefore, Dr. Arbi Mizaians medical reporting was found to be admissible and may be relied upon to issue a final finding subject to the reporting meeting the substantial medical evidence threshold. Following review of all the evidence the Court found sanctions under Labor Code 5813 are not warranted at this time, and Ordered the matter off calendar. In response Defendant filed the pending Petition for Reconsideration and in the alternative Petition for Removal.

ADJ17527839 · August 19, 2024

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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The rules the panel named

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