What the panel ordered
Decision after reconsideration issued on April 7, 2025, rescinding the January 7, 2025 decision and substituting findings and orders including replacement of Dr. John Finkenberg as orthopedic QME.
Petition for reconsideration granted to defer issues related to alleged violations of Labor Code section 4628; otherwise, the WCJ's January 7, 2025 decision is affirmed and restated.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The violations of section 4062.3 merited issuance of a replacement panel of QMEs, so the WCJ's findings and order for replacement were affirmed and restated.
From the decision · page 6However, because we agree with the WCJ's analysis with respect to the alleged violations of section 4062.3, and because we further agree that the violations merit the issuance of a replacement panel of QMEs, we will otherwise affirm and, for purposes of clarity, restate the WCJ's January 7, 2025 Findings and Order.
Due process requires notice and opportunity to be heard; the record did not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations, so the issue was deferred.
From the decision · page 5We write further, however, to address the due process considerations raised by the WCJ's determination that "Dr. John Finkenberg failed to comply with Labor Code section 4628 when he issued his medical reports dated August 23, 2010, and January 19, 2018." (Finding of Fact No. 1.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Service of the Report and transmission of the case to the Appeals Board occurred on February 5, 2025, providing notice to the parties of the 60-day period for acting on the petition for reconsideration.
Favours neutral
Ensured the petition for reconsideration was timely acted upon within the statutory 60-day period.
From the decision · page 2Here, according to the proof of service for the Report and Recommendation by the workers' compensation administrative law judge, the Report was served on February 5, 2025, and the case was transmitted to the Appeals Board on February 5, 2025. Service of the Report and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties were provided with the notice of transmission required by section 5909(b)(1) because service of the Report in compliance with section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period on February 5, 2025.
The record did not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations, nor an opportunity to be heard on the issue.
Favours Applicant prevailed
Required deferral of the section 4628 violation issue to protect due process rights.
From the decision · page 5Here, the record does not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations raised by the parties, nor does it appear the physician been afforded an opportunity to be heard on the issue. Accordingly, we believe that the order finding a section 4628 violation must be rescinded and the issue deferred to allow the parties to provide Dr. Finkenberg with the requisite notice and opportunity to be heard. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp.
Defendant failed to provide applicant with copies of witness statements sent to Dr. Finkenberg, violating Labor Code section 4062.3.
Favours Applicant prevailed
Supported affirming the WCJ's findings and ordering replacement of Dr. Finkenberg as QME.
From the decision · page 6FINDINGS OF FACT 1. The issue of whether Panel Qualified Medical Evaluator, Dr. John Finkenberg
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Failed to comply with Labor Code section 4628 in medical reports dated August 23, 2010, and January 19, 2018.
The WCJ found a violation of section 4628 by Dr. Finkenberg but the issue was deferred due to lack of due process notice.
From the decision · page 5We write further, however, to address the due process considerations raised by the WCJ's determination that "Dr. John Finkenberg failed to comply with Labor Code section 4628 when he issued his medical reports dated August 23, 2010, and January 19, 2018." (Finding of Fact No. 1.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4062.3
Labor Code section 4062.3 prohibits certain communications with QMEs; violations may result in replacement of QME.
Applied to affirm findings of violations and order replacement of Dr. Finkenberg as QME.
From the decision · page 6However, because we agree with the WCJ's analysis with respect to the alleged violations of section 4062.3, and because we further agree that the violations merit the issuance of a replacement panel of QMEs, we will otherwise affirm and, for purposes of clarity, restate the WCJ's January 7, 2025 Findings and Order.
Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197
Due process requires notice and a meaningful opportunity to present evidence regarding the issues.
Applied to the issue of section 4628 violation notice and opportunity to be heard.
From the decision · page 4Parties to a workers' compensation claim are entitled to due process under the California Constitution and the United State Constitution. (Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197, 201.) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Basi v. A Plus Academics (2021) 87 Cal.Comp.Cases 197, 201, citing Rea v. WCAB (2005) 127 Cal.App.4th 625, 643.) A workers' compensation judge may only address issues that have been properly raised and submitted at trial. (Lamin v. City of Los Angeles (2004) 69 Cal.Comp.Cases 1002, 1006.)
Labor Code section 4628
Labor Code section 4628 requires evaluating physicians to take complete medical history, review prior records, and disclose assistance in report preparation.
Applied to determine compliance of Dr. Finkenberg's reports with section 4628.
From the decision · page 5Section 4628 requires the evaluating physician to take a complete medical history from the applicant, to review and summarize the prior medical record, and to compose and draft the conclusions of the report. Where the initial outline of a patient's history or excerpting of the applicant's medical record is accomplished by someone other than the physician, the physician must review the excerpts or summary, and make relevant inquiry of the applicant, as well as disclose the name and qualifications of those persons assisting in the nonclerical preparation of the report. (Lab. Code, § 4628(c).)
What proof carried it
The evidence the panel weighed, by kind.
Lack of adequate notice to Dr. Finkenberg of section 4628 allegations
From the decision · page 5Here, the record does not reflect adequate notice to Dr. Finkenberg of the section 4628 allegations raised by the parties, nor does it appear the physician been afforded an opportunity to be heard on the issue. Accordingly, we believe that the order finding a section 4628 violation must be rescinded and the issue deferred to allow the parties to provide Dr. Finkenberg with the requisite notice and opportunity to be heard. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp.
Defendant failed to provide applicant with copies of witness statements sent to Dr. Finkenberg
From the decision · page 6FINDINGS OF FACT 1. The issue of whether Panel Qualified Medical Evaluator, Dr. John Finkenberg
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