ADJ2755694 · October 15, 2025

The WCJ initially excluded Dr. Miller's report for lack of objection to a treating physician report under sections 4061 and 4062, but the WCJ's Report found a notice of denial of claim before the report date, making the report admissible under section 4060 for compensability disputes. The WCAB agreed and ordered reconsideration.

From the decision · page 5The WCJ's Report initially addresses the issue of the admissibility of the reporting of Dr. Miller, which was excluded from evidence because there was no evidence that a party first objected to a treating physician report as required under section 4061 and 4062. The Report observes, however, that the record contains a notice of denial of applicant's claimed injury of October 12, 2003, and that the report of Dr. Miller should have been admitted into evidence on the basis that it was obtained to address a compensability dispute under section 4060. (Report, at p. 3.) The WCJ thus concludes the reporting of Dr. Miller should have been received in evidence. Regarding applicant's claim of industrial sleep impairment, the WCJ observes that the reporting of AME Dr. Hirsch did not find industrial injury, and that the WCJ found the AME reporting to be the more persuasive and well-reasoned. (Id. at p.

The WCJ found the psychiatric medical evidence insufficient and lacking objective testing, requiring record development. The WCAB agreed that the record was inadequate and ordered further development for psychiatric injury evidence.

From the decision · page 55.) With respect to applicant's claim of psychiatric injury, the WCJ noted that none of the psychiatric reporting in evidence constituted substantial medical evidence, and as such, that it was error not to develop the record. (Id. at p. 6.) Accordingly, the WCJ recommends that we return the matter to the trial level for development of the record with respect to the claimed psychological injury and permanent disability, and for consideration of the weight of the reporting of Dr. Miller. (Id. at p. 8.)

Notice of denial of claim dated April 6, 2007, existed before Dr. Miller's evaluation on July 14, 2014.

Favours Applicant prevailed

This fact established that Dr. Miller's report was obtained under section 4060 for compensability disputes, making it admissible evidence.

From the decision · page 5However, upon further review of the record occasioned by applicant's Petition, the WCJ noted that the record contained a notice of denial of applicant's claimed injury of October 12, 2003. (Report, at p. 3; Ex. B, Notice of Denial of Claim, dated April 6, 2007.) The WCJ further noted that although the claim was admitted as of the time of trial setting in March, 2018, the record does not disclose evidence that the claim was admitted by the time of the Dr. Miller evaluation on

Psychiatric medical reports lacked objective testing and did not constitute substantial evidence.

Favours Defendant prevailed

This deficiency required the WCJ and WCAB to order development of the record for psychiatric injury evidence.

From the decision · page 6The F&A also determined that the reporting of treating psychiatrist Dr. Procci and psychiatric AME Dr. Bassett are "insufficient" based on a lack of diagnostic testing. (Opinion on Decision, at p. 3.) The WCJ observed that none of the reports contained "objective testing" to support a psychiatric diagnosis, and that applicant therefore did not meet her burden of establishing psychiatric injury. (Ibid.)

Report was initially excluded but later found admissible under Labor Code section 4060 for compensability disputes and should be considered in determining permanent disability and future medical care.

The report was obtained in the context of a compensability dispute and a notice of denial of claim existed before the report date, making it admissible.

From the decision · page 5The WCJ's Report initially addresses the issue of the admissibility of the reporting of Dr. Miller, which was excluded from evidence because there was no evidence that a party first objected to a treating physician report as required under section 4061 and 4062. The Report observes, however, that the record contains a notice of denial of applicant's claimed injury of October 12, 2003, and that the report of Dr. Miller should have been admitted into evidence on the basis that it was obtained to address a compensability dispute under section 4060. (Report, at p. 3.) The WCJ thus concludes the reporting of Dr. Miller should have been received in evidence. Regarding applicant's claim of industrial sleep impairment, the WCJ observes that the reporting of AME Dr. Hirsch did not find industrial injury, and that the WCJ found the AME reporting to be the more persuasive and well-reasoned. (Id. at p.

Psychiatric medical evidence was found insufficient due to lack of objective testing; the WCJ found no substantial evidence of psychiatric injury.

The psychiatric reports lacked objective testing and did not constitute substantial evidence, requiring further record development.

From the decision · page 6The F&A also determined that the reporting of treating psychiatrist Dr. Procci and psychiatric AME Dr. Bassett are "insufficient" based on a lack of diagnostic testing. (Opinion on Decision, at p. 3.) The WCJ observed that none of the reports contained "objective testing" to support a psychiatric diagnosis, and that applicant therefore did not meet her burden of establishing psychiatric injury. (Ibid.)

Labor Code section 4060

Labor Code section 4060(c) (2003) allowing each party to select a QME for compensability disputes

The WCJ concluded Dr. Miller's report was admissible under this statute due to the existence of a compensability dispute and a notice of denial of claim before the report date.

From the decision · page 6July 14, 2014. Accordingly, the WCJ concluded that the report was appropriately obtained under the auspices of section 4060, which at the time of the claimed injury provided that for compensability disputes, "each party may select a qualified medical evaluator to conduct a comprehensive medical-legal evaluation." (Lab. Code, § 4060(c) (2003).) Accordingly, the WCJ concludes "it is clear that [the Dr. Miller] report should have been admitted into evidence." (Report, at p. 7.)

Labor Code sections 4061 and 4062

Labor Code sections 4061 and 4062 requiring objection to treating physician report before obtaining QME report

The WCJ initially excluded Dr. Miller's report for lack of objection under these sections but later found the report admissible under section 4060 due to compensability dispute.

From the decision · page 5We first address the issue of the admissibility of the July 14, 2014 reporting of applicant's QME Dr. Miller. Defendant challenges the admissibility of the report as not having been obtained pursuant to the requirements of sections 4061 or 4062. (Opinion on Decision, at p. 3.) Accordingly, the parties placed in issue the admissibility and weight of the reporting of Dr. Miller at trial. (Minutes of Hearing, dated August 27, 2018, at pp. 3:14; 4:6; 4:23.) The WCJ observed that sections 4061 and 4062 required a party to object to a treating physician report prior to obtaining a QME. (Opinion on Decision, at p. 3.) Here, the record reflected no objection to a treating physician report, leading the WCJ to conclude that the reporting had been obtained outside the requirements of section 4061 or 4062.

Labor Code sections 5701 and 5906

Labor Code sections 5701 and 5906 authorizing WCJ and Board to develop the record when medical evidence is not substantial

The WCJ and WCAB agreed that the psychiatric medical evidence was insufficient and ordered development of the record for psychiatric injury.

From the decision · page 7Additionally, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d);Lamb v. Workmen's Comp. Appeals Bd.(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310];Garza v. Workmen's Comp. Appeals Bd.(1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500];LeVesque v. Workmen's Comp. Appeals Bd.(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701, 5906;Tyler v. Workers' Comp. Appeals Bd.(1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; seeMcClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision inMcDuffie v.

McDuffie v. MTA (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

McDuffie v. MTA (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

The WCJ applied McDuffie to require supplemental psychiatric reports containing MMPI analysis to constitute substantial evidence.

From the decision · page 6The WCJ's Report agrees, noting that "once the parties have filed for reconsideration, the trier of fact may then consider whether the duty to develop the record is required for accurate fact- finding... [s]ince none of the psychologists wrote a report that constituted substantial evidence of a mental injury, the McDuffie vs. MTA [(en banc, 2002) 67 CCC 138] case would apply and the parties should be permitted to obtain supplemental reports from these doctors that contain an

Lack of objective testing in psychiatric reports

From the decision · page 6The F&A also determined that the reporting of treating psychiatrist Dr. Procci and psychiatric AME Dr. Bassett are "insufficient" based on a lack of diagnostic testing. (Opinion on Decision, at p. 3.) The WCJ observed that none of the reports contained "objective testing" to support a psychiatric diagnosis, and that applicant therefore did not meet her burden of establishing psychiatric injury. (Ibid.)

Notice of denial of claim dated April 6, 2007, before Dr. Miller's evaluation on July 14, 2014

From the decision · page 5However, upon further review of the record occasioned by applicant's Petition, the WCJ noted that the record contained a notice of denial of applicant's claimed injury of October 12, 2003. (Report, at p. 3; Ex. B, Notice of Denial of Claim, dated April 6, 2007.) The WCJ further noted that although the claim was admitted as of the time of trial setting in March, 2018, the record does not disclose evidence that the claim was admitted by the time of the Dr. Miller evaluation on