The California Court of Appeal, 2nd District has granted applicant’s Petition for Writ of Review of the WCAB en banc decision of Valdez v W.C.A.B. Oral argument is scheduled for May 4, 2012 in Los Angeles.
The Valdez WCAB en banc decision held that medical reports obtained by the applicant outside of the employer’s valid MPN are inadmissible as evidence at the WCAB and do not have to be paid for by the employer. There seems to be more of a consensus that such reports do not have to be paid for by the employer, but less of a consensus that the reports are inadmissible. The majority of the WCAB en banc held that the reports do not have to be paid for and are inadmissible. One of the two dissenting commissioners agreed with the majority that the reports have to be paid for by the employee, not the employer, but both dissenting commissioners felt that the reports should nevertheless be admissible as evidence. The problem with the dissenting view is that these outside-MPN “treating” reports are not really for treatment at all, but are instead fairly transparent attempts to purchase admissible medical-legal reports while circumventing the AME/QME process. Employers have no such “shadow QME” process available to them, and must rely solely on the often unconscionably slow AME/QME process when disputing medical or benefit issues.
While we watch carefully for the outcome we should be mindful that although the Court of Appeal has agreed to review this case, the WCAB en banc decision of Valdez remains binding legal authority on the WCAB and all its judges unless and until the case is actually overturned by a higher court. Diggle v. Sierra Sands 70 CCC 1489.