Judge May Order Additional Medical Evidence If Needed

It has been common belief in the workers’ compensation community that under the 1989 reform legislation the judge may not send the applicant for additional medical evaluation if the existing record is not substantial evidence. A new appellate case has indicated that proposition is incorrect.

In this case the applicant filed a claim for psychiatric injury due to stress at work. The employer referred the applicant for medical evaluation. The employer’s psychiatrist found the applicant’s condition nonindustrial.  The original applicant’s attorney referred the applicant to a neurologist, who found the condition industrial. Due to the conflict, the original applicant’s attorney and the defense agreed to an AME in psychiatry. The AME did not find the condition industrially caused. The case proceeded to trial.

The Judge (WCJ) concluded that it was nonindustrial only because the medical evidence did not support a finding of industrial causation. It was the WCJ’s opinion that there was stress in the work place which caused the applicant’s disability. However, the WCJ had no medical evidence to rely on and believed under the reform legislation he could not send the applicant out for additional medical evidence.

The Court analyzed Labor Code sections 5701 and 5906. 5701 allows the appeals board to send the applicant to a physician. 5906 allows the appeals board to take additional evidence. The Court then analyzed two cases. They analyzed a post-reform case that indicated that the Board may further develop the record in a given case. The Court then relied on a pre-reform case cited in this post-reform case for the proposition that the Board could obtain additional medical evidence.

The Court indicated that the WCJ was correct in his opinion when he indicated that he could not appoint an independent medical examiner.  However, they ruled he could obtain further evidence. “Sections 5701 and 5906 were not affected by the reform legislation and they remain available for use in the original proceeding or upon reconsideration. (See Kennedy v. Fremont Comp. Ins. Co. (1993) Cal. Workers’ Comp. Rptr. 78 (which concluded that even if a WCJ could not refer an applicant for an IME, the medical record could, and should, be developed by other means such as supplemental medical reports…”.

Now that workers’ compensation has the presumption of the treating physician this case may help the party that does not like the opinion of the treating physician. The treating physician’s opinion may be attacked as not being substantial evidence and the objecting party can make a motion for the judge to send the applicant for additional medical evaluation. This will be the same procedure as in pre 1989 reform when a motion was made at the end of trial for the WCJ to appoint an IME.

Case: Tyler V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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