Defendants in the California workers’ compensation system tend to become accustomed to medical-legal reports that don’t go their way. Sometimes this takes several years, but it can often occur sooner.

Michael P. Burns

They will also receive some that are mind-boggling. The reports may be internally inconsistent, grossly overstate impairment despite contradictory evidence such as sub rosa, or simply fail to apportion to obvious preexisting conditions.

On occasion, however, a report may be so offensive, so hostile and so replete with invective that a defendant will ponder, with an open mouth, how such an obviously biased evaluator is allowed to serve. Often, this may come from evaluators from a particular specialty notorious for pro-applicant or applicant-friendly reports, such as chiropractors. However, all specialties are subject to the potential of an evaluator whose report is so exaggerated and clearly biased against an employer or insurer that immediate action is needed to remove him.

Removing a qualified medical evaluator, however, is difficult, if not impossible, from a defendant’s perspective before the matter is submitted for trial on the case-in-chief. The regulations provide a number of ethical requirements for QMEs, nearly all of which favor applicants. For example, an applicant can terminate an evaluation if the evaluator is discriminatory toward the worker based on race, sex, national origin, religion or sexual preference; exhibits abusive, hostile or rude behavior, including behavior that clearly demonstrates a bias against injured workers; and instances where the evaluator requests the worker to submit to an unnecessary exam or procedure.

But what protections against bias are afforded to defendants? Unfortunately, there are few viable options when attempting to remove a QME based on bias against a defendant. A QME may be replaced if he cannot set a timely examination, issue timely reports or make himself available to deposition. But what recourse do defendants have when a QME issues a report that is so blatantly biased against defendant that further discovery with that evaluator cannot occur?

Medical evaluators are required by law to be neutral and objective, and not to favor one party over the other. Statute 8 CCR § 41(c)(4) provides that all conclusions from an examiner “shall be based on the facts and on the evaluator’s training and specialty-based knowledge and shall be without bias either for or against the injured worker or the claims administrator, or if none the employer.”

Surprisingly, this regulation has received little attention from the Workers' Compensation Appeals Board. In what circumstances has an evaluator violated the neutrality requirement of section 41(c)(4), and how can defendants respond when a report is overtly biased?

Usually, the matter will be addressed when the case-in-chief is set for trial and the QME report is submitted as evidence. One of the issues that may be raised by defendant, in addition to whether the report is substantial medical evidence, is whether the parties have to return to the same QME to develop the record. In conjunction with this claim, defendants should raise the issue of whether the report is so biased under section 41(c)(4) that a new evaluator should be appointed.

In Ponsi v. Gonzalez Unified School District (2009), the medical-legal evaluator issued reports that the trial judge found did not constitute substantial medical evidence concerning the issue of causation in a hypertension/stress claim. Applicant filed a motion to strike the QME report and bar its admission into evidence and further requested that a new QME be appointed.

The WCAB agreed that a new QME should be ordered. It cited 41(c)(4), noting that the evaluator’s report and deposition indicated that the QME believed that “regardless of the facts" of a particular case, “employment stress cannot cause, exacerbate or even contribute to hypertension.” Because the QME would never find a case of industrially caused hypertension, whether he actually examined applicant or not, this approach was “inconsistent with rule 41” requiring an unbiased examination, and a new evaluator was ordered.

Similarly, in Sineath v. Wells Fargo (2014), the WCAB upheld the removal of a QME who stated in his report that he did not, and “never will,” apply Almaraz-Guzman because it was “a legalistic ploy that attempts to insinuate subjective complaints as a factor in impairment ratings.” The WCAB held that the report could not constitute substantial evidence, and therefore a new evaluator was needed. The QME’s bias against Almaraz-Guzman, however well intended, was sufficient to replace him as the evaluator.

It is usually only after trial that the WCAB will evaluate whether a QME report is substantial evidence. Development of the record with the same QME is the most likely outcome in such a circumstance.

However, in addition to objecting to the evaluator’s reports on their merits, section 41(c)(4) should also be cited if there is evidence that the QME has a predetermined belief or predisposition regarding the facts of a case or medical theories that he cannot or will not change, even in the face of contradictory evidence. In these cases, an argument may be made that the evaluator is biased against the defendants. Rule 41(c)(4) is another arrow in a defendant’s quiver when facing reports that are so overtly biased that the QME should be replaced.

One of the fundamental aspects of the workers' compensation system is that the parties are entitled to a fair and unbiased evaluator, and a doctor that has shown evidence of a predisposition against a party, including defendants, can — and should — be removed.

Michael Burns is a partner at Bradford & Barthel’s San Jose location. This entry from Bradford & Barthel's blog appears with permission.