Tyler And McLune Decisions Extended In New Decision

The Workers’ Compensation Appeals Board (WCAB) has answered a lot of questions in an en banc decision regarding when the evidence is not sufficient.

The applicant was a bus operator from 1976 until June 30,1999. The applicant files a cumulative trauma for an injury to the knees and hypertension. Both the applicant and defendant obtained medical evaluations.

The case proceeded to trial. The applicant was the only witness. The Workers’ Compensation Judge (WCJ) determined that the medical record was lacking. Therefore, the WCJ appointed a medical evaluator to augment the record. Defendant filed a petition for reconsideration.

The WCAB granted the petition and issued this en banc decision. The Board reviewed Tyler v. WCAB (1997) 62 CCC 924 and McLean v. WCAB (1998) 63 CCC 261. The Board agreed with the WCJ that the medical record was incomplete in this case and required further development. However, they disagreed that the best alternative was the appointment of a new medical examiner.

The preferred procedure is to supplement the medical record with physicians who have already reported in the proceeding. Each side can supplement with supplemental reports and/or depositions in the area requiring further development. It is only when the original reporting physicians cannot cure or do not cure the defects in the medical record that a new physician will be considered.

An agreed medical examiner (AME) can now be considered. The time limits of4061 and 4062 do not apply. These time limits apply only to the initial stages of the proceeding and not once the case has proceeded to trial.  The choosing of an AME is better than choosing new qualified medical examiners (QME’S), since this promotes the goal of expediting the resolution of the case.

It is only when none of the foregoing procedures clarify the record that the WCJ may resort to the appointment of a regular physician or an independent medical examiner (JME), as they used to be called. If this evaluation becomes necessary then this will be considered a medical-legal expense under Labor Code section 4620.

The WCAB states the AME is allowed at this stage of the proceeding even though the parties could not agree to an AME at an earlier stage of the proceeding.

Case: McDuffie v. L.A. County Transit Authority

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

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