ADJ14364236 · August 26, 2024

The WCJ found the QME's physical examination credible based on detailed findings and attestations, and applicant failed to prove unavailability for deposition; removal standard not met.

From the decision · page 2On June 10, 2024, the WCJ issued her Findings of Fact, determining that Dr. Sonu was not disqualified as the QME, and that the QME was not unavailable for cross-examination. The WCJ's Opinion on Decision noted the QME's detailed physical findings in the February 7, 2023 report, as well as the attestations of the QME that he had personally accomplished a physical examination of the applicant. (Opinion on Decision, p. 3.) The WCJ further noted that applicant did not promptly raise the issue of the adequacy of the examination, waiting more than one year to offer any objection to the evaluation, as set forth in his April 1, 2024 DOR. With respect to the availability of the QME for deposition, the WCJ noted that applicant had the burden of proving unavailability of the QME but had offered no evidence in support of that contention. (Id. at p. 4.)

QME Dr. Sonu provided detailed physical findings and attested under penalty of perjury to having personally examined applicant.

Favours Defendant prevailed

Supported WCJ's credibility finding and denial of QME disqualification.

From the decision · page 2On June 10, 2024, the WCJ issued her Findings of Fact, determining that Dr. Sonu was not disqualified as the QME, and that the QME was not unavailable for cross-examination. The WCJ's Opinion on Decision noted the QME's detailed physical findings in the February 7, 2023 report, as well as the attestations of the QME that he had personally accomplished a physical examination of the applicant. (Opinion on Decision, p. 3.) The WCJ further noted that applicant did not promptly raise the issue of the adequacy of the examination, waiting more than one year to offer any objection to the evaluation, as set forth in his April 1, 2024 DOR. With respect to the availability of the QME for deposition, the WCJ noted that applicant had the burden of proving unavailability of the QME but had offered no evidence in support of that contention. (Id. at p. 4.)

Applicant failed to provide evidence of QME unavailability for deposition and did not timely raise adequacy of examination issue.

Favours Defendant prevailed

Supported denial of removal petition under removal standard.

From the decision · page 4We also observe that in raising the issue of the availability of the QME for deposition, applicant bears the burden of proof. (Lab. Code, § 3202.5; 5705.) Applicant offers no persuasive evidence of the unavailability of QME for deposition and cites to no authority for the proposition that such deposition must take place during "normal" business hours. We therefore concur with the WCJ's decision declining to find the QME unavailable for deposition.

Performed physical examination of applicant with detailed physical findings; attested under penalty of perjury to having personally examined applicant.

WCJ found QME's report and attestations credible over applicant's testimony.

From the decision · page 2On June 10, 2024, the WCJ issued her Findings of Fact, determining that Dr. Sonu was not disqualified as the QME, and that the QME was not unavailable for cross-examination. The WCJ's Opinion on Decision noted the QME's detailed physical findings in the February 7, 2023 report, as well as the attestations of the QME that he had personally accomplished a physical examination of the applicant. (Opinion on Decision, p. 3.) The WCJ further noted that applicant did not promptly raise the issue of the adequacy of the examination, waiting more than one year to offer any objection to the evaluation, as set forth in his April 1, 2024 DOR. With respect to the availability of the QME for deposition, the WCJ noted that applicant had the burden of proving unavailability of the QME but had offered no evidence in support of that contention. (Id. at p. 4.)

Lab. Code, §§ 5900(a), 5902, 5903; Maranian v. WCAB (2000) 81 Cal.App.4th 1068

Petition for reconsideration may only be taken from a final order or decision; interlocutory orders are not final and are reviewed under removal standard.

The petition challenged an interlocutory order denying disqualification of the QME; removal standard applied.

From the decision · page 3DISCUSSION A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"]; Rymer, supra, at p.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB (2006) 136 Cal.App.4th 596

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Petitioner failed to show irreparable harm or substantial prejudice from denial of QME disqualification.

From the decision · page 4Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

WCJ found QME's detailed physical findings and attestations credible over applicant's testimony

From the decision · page 3DOR filed April 1, 2024. (Report, at p. 3.) The WCJ also notes that in evaluating whether the reporting of the QME or the applicant's testimony was the more credible version of events, the WCJ found the QME reporting to be more credible based on the QME's very specific physical findings and the physician's attestations set forth under penalty of perjury that he had actually examined applicant. (Report, at p. 3.) Accordingly, the WCJ recommends we deny applicant's Petition.