The Examiner’s Guide to a Medical Report

By Corey A. Ingber


  • The WCAB expressly favors the production of medical evidence in the form of written medical reports
  • Live medical testimony at trial is strongly disfavored and is therefore rare.  It can be brought but only upon a party first making an application and then showing good cause[i] 
  • The filing of a medical report with the WCAB does not make it admissible.  The medical report is not received in evidence simply because it is filed[ii]
  • As a result of the SB 899 reforms, for injuries on or after 1/1/05, the parties are no longer permitted to simply go out and obtain a medical-legal opinion from a physician under Labor Code Sections 4060, 4061 or 4062.  Instead, the parties are expressly limited to obtaining medical-legal opinion and evidence either from a PQME (APQME) or AME.  All other medical opinions are specifically limited either to a Primary Treating Physician or Treating Physician[iii]
  • Most reports from treating physicians are going to get into evidence
  • The WCAB will generally permit medical reports to come in to evidence but may accord them less weight or even no weight
  • The reforms have restricted introduction of medical-legal evidence.
  • Failure to make proper disclosures under Lab C 4628 may render the entire report inadmissible
  • A medical report must be substantial evidence
  • Substantial evidence is based upon reasonable medical probability[iv]
  • A medical opinion is not substantial evidence if it is based upon facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture or guess[v]
  • A medical report is not substantial medical evidence unless it sets forth the reasoning behind the physician’s opinion, not merely his or her conclusions[vi]
  • The chief value of an expert’s testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material from which his or her opinion is fashioned and the reasoning  by which he or she progresses from the material to the conclusion, and does not lie in the mere expression of the conclusion; thus the opinion of an expert is no better than the reasons upon which it is based[vii]




Essential Element Reference
Complete Medical History 



List of ComplaintsThe Information Provided by the Parties and Records Summary 10606
Medical History
Findings Upon Examination
Opinion on Disability
  • (1997 PDRS ONLY)  Identification of subjective disability based upon ADR 9727, which includes duration, activity producing disability, means for relief and the definitions of pain (minimal, slight, moderate, severe)


  • (2005 PDRS for injuries on or after 1/1/05) Impairment consistent with AMA Guides per Lab C 4660[i]
Cause of the Disability
Medical Treatment
Permanent and Stationary Status
Apportionment to Causation
Signature and Disclosure








  • It seems as if a majority of MMI reports fail to properly address apportionment to causation.  Instead of following SB 899’s Labor Code 4663 and Escobedo, the typical evaluation contains either a blanket ‘rule out’ of apportionment or a specific finding of no apportionment upon the basis that there was no prior disability or labor impairing symptom.  This is the “old thinking’ which continues to find its way into medical reports.
  • These reporting physicians are still “thinking” about apportionment in the manner in which they were trained or by the way in which they practiced pre-SB 899.
  • Many of these physicians think that the only prior basis upon which to determine apportionment under Labor Code 4663 is if the medical record includes one or more of the following:
        • Pain
        • Tenderness
        • Stiffness
        • Spasm
        • Taking medication
        • Getting treatment
        • Muscle guarding
        • Atrophy
        • Loss of motion
        • Ligament injury
        • Swelling
        • Radiculopathy
        • Sensory deficit
        • Herniated Disc
        • Motor deficit/muscle weakness
        • Gait derangement
        • Nerve lesion
        • Wound/scar
        • Fracture
        • Fusion/anklyosis
        • Amputation
        • Impairment[ix]
        • Work restrictions
        • Impacted activities of daily living
  •  All of these can still be valid “factors of apportionment” under Escobedo.[x]  But under this En Banc decision, “other factors” can now include:
  • Pathology
  • Asymptomatic prior conditions
  • Retroactive prophylactic work restrictions

In any letter to a physician, whether he or she is a PTP, Sub treating physician, PQME, AQME or AME, the following questions need to asked:

 1.         Set forth each and every factor whether prior or subsequent to the industrial injury, that has caused any permanent disability, including prior or subsequent injuries.2.         What approximate percentage of the permanent disability is the direct result of or directly caused by the injury arising out of and occurring in the course of the employment3.         What approximate percentage of the permanent disability is caused by factors, whether prior or subsequent to the industrial injury as set forth in paragraph (1) above.


A medical report which does not properly address apportionment to causation is not complete and is therefore not substantial evidence of permanent disability.  Lab C 4663:  “(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination.  A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of an occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.  If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reason why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury.  The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.”



Sample Doctor Letter

Thank you for agreeing to evaluate the application for purposes of determining certain medical issues in this matter.  In this regard, it is our understanding that you are acting within the capacity as [state the capacity e.g. Primary Treating Physician, Secondary Treating Physician, State Panel Qualified Medical Evaluator,” “Agreed Medical Examiner.”] This will confirm that the applicant has an appoint with you on:  [specify].  Enclosed or attached, you will find copies of the workers’ compensation claim form, together with copies of the present medical record and copies of prior medical records, if any. [AGAIN BE SURE TO COMPLY WITH THE RULES GOVERNING WHAT CAN GO TO THE QME AND THE TIMING RULES)  We would appreciate if you would notify us if any OR ALL of the referenced documents or records are not in fact attached or enclosed.

Upon completion of your examination, we would appreciate if you would provide a copy of your report to the attorney for applicant as well as a copy to us, together with your billing items, in order assure prompt processing for payment.

1.         Please be sure to remember that we are governed by SB 899 insofar as establishing permanent disability [ based upon AMA Guides incorporated “impairment”] under the new Permanent Disability Rating Schedule (hereafter 2005 PDRS) and apportionment to causation, which is more fully referenced below.  In this regard, your evaluation should reflect a full and complete assessment so that the history should be complete, including a report of the injury, prior status, clinical chronology, current status and past medical history. Please compare the history provided by the examinee with the history documented in the medical records.

2.         Is the applicant permanent and stationary from the effects of the industrial injury?  For your reference, the Administrative Director defines the term “permanent and stationary,” as ‘the point when an impairment has reached maximum medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without medical treatment.[1]  If the applicant is permanent and stationary, then please specify the date upon which he/she became permanent and stationary.

3.         The physical examination should document all relevant findings in accordance with the AMA Guides, 5th Edition.  These would include, among other things, the mechanism of the injury, the onset of symptoms if any, concurrent causes of the injury, if any and the specific parts of the body injured or claim injured.   The physical examination should also encompass positive, negative and non-physiological findings. Kindly note the parts of the body parts and or/organs claimed injured as reflected in the medical record if they are different from those parts of the body and or/organs claimed injured by the applicant.  Please also note any variation between the claimed nature and extent of symptoms, including pain, versus the instant medical record, if any.

4.         What are the current diagnoses and which of these are associated with the referenced injury?  Please discuss fully these diagnoses and their significance.  Are there any non-physiological findings present on examination?  Please explain the rationale for your conclusions.

5.         To the extent that you have determined the applicant is at MMI and is therefore permanent and stationary, then the portion of your examination relating to impairment assessment is guided and governed under the requirements set forth in the AMA Guides, 5th edition.  Reference is made to Labor Code 4660(a) and (b) as follows:

(a)  In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement….”

(b)  For purposes of this section, “the nature of the physical injury or disfigurement” shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) as to specific measurements, including atrophy, range of motion deficit, strength, damage to an organ system or body structure, gait, sensory deficits, muscle spasm, muscle guarding, asymmetry of spinal motion, root tension signs, muscle strength, reflexes, etc.

6.         If spinal impairment is rated, please explain your choice of methods and how you determined impairment.  For upper extremity injuries, please complete Figure 16-1 Upper Extremity Impairment Evaluation Record (5th Ed, 436-437.  For lower extremity injuries, please explain the method (so that you have chosen with reference to Table 17-2 Guide to the Appropriate Combination of Evaluation Methods (5th Ed., 526).

7.         For impairment ratings, please report the whole person impairment (WPI) rating for each impairment using the AMA Guides, 5th Edition, and explain how the rating was derived.  List tables used and specific page numbers.

8.         If the burden of the workers’ condition has been increased by pain-related impairment in excess of the pain component already incorporated in the WPI rating under Chapters 3-17 of the AMA Guides, 5th Edition, specify the additional whole person impairment rating (up to 3% WPI) attribute to said pain.  For excess pain involving multiple impairments, attribute the pain in whole number increments to the appropriate impairments.  The sum of all pain impairment ratings may not however, exceed 3% for a single injury.  If you feel pain is ratable then please detail your methodology, including references to Tables, Figures and specific page numbers in the 5th Edition.

9.         Under SB 899, taking effect 4/19/04 and for all dates of injury, apportionment of permanent disability is now based upon causation.  Accordingly, we request that you address the issue of apportionment herein based upon the new required standard of “causation.”  This means that all prior apportionment statutes are no longer the basis upon which to establish apportionment.  However, if there were for example, a prior labor disability existing before the industrial injury (former Labor Code Section 4750) this could certainly support current apportionment if it were part of the cause for permanent disability but it need not be the sole basis to find apportionment inasmuch as the finding of apportionment and how it is to be determined, has changed.  Therefore, under the new apportionment statutes (see below) a determination shall be based upon reasonable medical probability as follows:

  • Please set forth every factor, whether prior or subsequent to the industrial injury, that has caused any permanent disability, including prior or subsequent injuries.  By “other factor” it is assumed that you should properly consider, but are not limited to, (1) pre-existing medical conditions, pre-existing, disease and or the natural progression thereof, or disease process, pathology, asymptomatic prior conditions, illness, functional impairment, disability, work restrictions, restriction of impairment in any activity of daily living, bodily or organ impairment/dysfunction, physical/emotional imitations; (2) prior injuries, accidents, trauma, concurrent; (3) concurrent conditions, causes or contributing factors, including but not limited to concurrent employment, concurrent industrial exposure, concurrent non-industrial incidents, exposures, activities, sports injuries, recreational or hobbies, activates of leisure;  (4) subsequent  injuries, accidents, traumas, disease, conditions, events, activities or illness
  • Under the en banc decision of Escobedo v. Marshalls[xi],  you are specifically permitted to find apportionment to causation based upon asymptomatic prior conditions, retroactive prophylactic work restrictions/preclusions and/or pathology or to any other condition or factor, even those which would not have been apportionable under the prior but repealed statutes
  • Within reasonable medical probability, what approximate percentage of the resulting permanent disability, if any, was the direct result of or directly caused by the injury arising out of and occurring in the course of the employment herein.
  • What approximate percentage of the permanent disability is caused by other factors, whether prior, concurrent or subsequent to the industrial injury as set forth.

10.       Is the permanent disability directly caused, by an injury or illness arising out of and occurring in the course of employment?     __Yes  ___No

11.       Is the permanent disability caused, in whole or in part, by other factors besides the industrial injury or illness?    ___Yes   ___No

12.       If the answer to paragraph 11  is “yes,” then please provide:

  • The approximate percentage of the permanent disability that is due to factors other than the injury or illness arising out of and in occurring in the course of employment.  Please outline a complete narrative description of what other factors existed and if you are able to do so, state the basis upon which you find other factors, such as whether they exist in the medical record, upon x ray, in other records or testimony, based upon examination findings or the nature of the illness, injury or disease or any other basis.

13.       If you are unable to include an apportionment determination in your report, state the specific reasons why you could not make this determination.

14.       Describe any continuing medical treatment related to this injury that you believe must be provided to the patient.  “Continuing medical treatment” is defined as occurring or presently planned treatment.  And describe any medical treatment the patient may require in the future.  “Future medical treatment” is defined as treatment which is anticipated at some time in the future to cure or relieve the employee from the effects of the injury.  Please include medications, physical medicine services, durable equipment, surgery, etc.  Please note that all continuing or future medical treatment considerations should be based upon the ACOEM guidelines or if you deem appropriate, other nationally recognized, peer reviewed evidence based guidelines.[2]

The New Apportionment Statutes

Effective 4/19/04

SB 899

§ 4663. Apportionment of permanent disability; Causation as basis; Physician’s report; Apportionment determination; Disclosure by employee(a) Apportionment of permanent disability shall be based on causation.(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.(c) In order for a physician’s report to be considered complete on the issue of permanent disability, it must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.§ 4664.  Liability of employer for percentage of permanent disability directly caused by injury; Conclusive presumption from prior award of permanent disability; Accumulation of permanent disability awards(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

(b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.

(c)(1) The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:

(A) Hearing.

(B) Vision.

(C) Mental and behavioral disorders.

(D) The spine.

(E) The upper extremities, including the shoulders.

(F) The lower extremities, including the hip joints.

(G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.

(2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the

Please let us know whether you require any further records or other information other than what has been transmitted herein.  Please provide your written report, together with your billing item to the undersigned, in order to assure your prompt payment.  Thank you for your courtesy and cooperation herein.


Psychiatric Claims

Guides focus upon impairment based upon Activities of Daily Living (ADL) which by definition, exclude work The new PDRS incorporates the GAF.  Part of the GAF is to measure function based upon psychological, social and occupational
Get rid of the subjectivity within the system.  Pain not ratable other than the Guides (3%). Bring back the terms “minimal,” “slight,” and “moderate.” (in the GAF) but this time, don’t bother to define them.

The Ideal:    An applicant with symptoms but coping well enough so that the symptoms do not impact activities of daily living (ADL) and do no impact either psychological or social function.

The Ideal:   Applicant who has symptoms but there is incomplete information so that we have “inadequate information” which is a ZERO or non-ratable GAF. (See PDRS 1-15 or DSM-IV-TR pp 34)

The ideal:   Casting doubt to attack the validity of the GAF.


  • Déjà vu all over again
  • Essential proliferation
  • Why?
  • 40% FEC factor


  • Enhancer


  • Plays upon the paradox that a new PDRS can be effectively “gamed” by using the old tools of subjectivity


  • The “equalizing factor”  …sort of a social PD Robin Hood effect


  • The ingredients for mischief are already quite present


  • Compensable consequence though tarnished, it otherwise alive and well


  • Psyche is the “bridge to equalizing” the perceived injustices wrought by the new law


  • 1.8 of the Guides, based upon ADL, exclude work as part of the definition of impairment.  But the GAF seems to include “occupational” disability.


  • The dental assistant:
 The GAF
  • Page 1-12 of the new Rating Manual says “shall.” And then converted to a whole person impairment using the GAF conversion table.
Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment increases an individual’s ability to perform common activities of daily living (ADL), excluding work.  The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work.  (See Table 1-2 on page 4 of the Guides) GAF includesOccupational functioning In this respect, because it includes occupational functioning, it is broader than ADL. 

Also includes psychological functioning

Also includes social functioning

Includes the Physical Limitations Does not include PHYSICAL LIMITATIONS OR ENVIRONMENT



  • Is the GAF mostly diagnosis and symptom based?
  • Why is TIME specified in the DSM IV but not specified in 1-13 of the PDRS
  • What can be done as to the validity vs. reliability?


How to Defend a Case

Things Associated with a Strong Defense:

  • APPLICANT DEPOSITION:  “the sine qua non” to success



  • Function
  • Symptom Severity  (excluding physical)

But they reprise the old terms like “minimal,” “slight,” and “moderate.”



  • Social
  • Occupational
  • Psychological

“In some settings, it may be useful to assess social and occupational disablity and to track progress sin rehabilitation independent of the severity of the psychological symptoms.”  THIS IS NOT IN THE RATING MANUAL BUT IS OTHERWISE FOUND AT THE BOTTOM OF THE INSTRUCTIONS IN THE DSM-IV-TR at page 33


SOFAS:                PAGE  817

  • Exclusive focus on occupational and social functioning
  • Not influenced by the severity of symptoms
  • Can we use this?
  • Can they use this?
  • Impairment caused by medication is considered here
  • Otherwise:  51-60 GAF v. SOFA no real difference


GARF:               Page 814

  • Good to review before a deposition
  • Focus on family functioning or other relationship


  • Physical  (don’t count it twice once it becomes compensable)
  • Environmental

Seems to run counter to the Guides, which specifically do not include occupational


Using the Deposition for success:

  • Sending to a doctor
  • Allow your witness to review it
  • To impeach the applicant at the WCAB
  • To drive settlement
  • To support a Thomas finding
  • To support a doctor cross examination
  • To support motions or trial brief challenging medical evidence



  • Rich in detail with a full painted picture
  • Questions that probe and establish something
  • Questions that elicit “yes” or “no” responses
  • Questions that enlighten and explain
  • Questions that negate and deny
  • Questions that fill in the gaps
  • Questions that explain ambiguities or resolve conflict
  • Questions that elicit damaging admissions
  • Questions that highlight inconsistency
  • Questions that show the doctor got the wrong medical history
  • Questions that show the doctor didn’t get enough detail about the complaints
  • Questions that are non-scripted
  • Questions that are not conclusion based
  • Questions designed to flesh out phantom complaints
  • Questions that permit you to control the testimony
  • Questions that permit you to gain information that you need for discovery completion
  • Questions that tell you about the applicant
  • Questions that show the applicant is a potential liar


The Doctor didn’t get it right so there isn’t enough information to be probative and therefore the report upon which it is based is not substantial evidence.  (See Escobido)

Doctor Cross X (See page 14)

  • Do symptoms affect the function?
  • Is the function high so that the individual is functioning HIGHER within the range?



Nothing like a bad witness:  “The Cafeteria Witness”

  • The cold shoulder witness
  • The indifferent witness
  • The unprepared witness
  • The hostile employer
  • The uncooperative witness
  • The unconvincing witness
  • The non-believer
  • Not prepared to testify
  • The vulnerable witness

Nothing like a good witness:

  • Knowledgeable
  • Cooperative
  • Friendly
  • Confident
  • Helpful
  • Assisting you
  • Providing information you don’t know about
  • Leading you to new witnesses
  • Giving you documents you didn’t even know existing
  • Better rebuttal witness
  • Prepared
  • Relaxed
  • A Winner




  • Establish that the doctor did not get an accurate history of the symptoms;
  • That the doctor did not get substantial information on function and did not ask enough in depth questions
  • Attacking the validity of the GAF
  • Using the broader list of ADL to back door the GAF, which is narrower, and which does not include physical things.
  • Using the deposition as a basis to attack the validity of the GAF


 Doctor Letter Worksheet



  • Make the “objection” to medical determinations of treating doctor (Lab C 4062) within 20 days of receipt of report, or you are bound by Lab C 4061.  Make sure your “triggering” objection is timely (County of Santa Barbara v. WCAB 1999 64 CCC 907)
  • Make sure you know the “purpose” of your exam, prior to scheduling that exam:




  • Consult per Lab C. 4050
  • Going back to former PTP
  • QME (4062)
  • QME (4061)
  • AME
  • Going to current PTP (demanding information)
  • QME (4060)
  • Strategy?  Plan of Action?




  • Time frame if t.d. or treatment is in issue;
  • Geographic
  • Ordering MRI/CT/X-Ray films prior to exam;
  • Getting Board Order to attend;
  • Chernow and Lieb input on doctor selection?
  • Problems with admissibility (e.g. 5502(d)(3))
  • Enough notice to applicant?
  • Special travel arrangements?
  • Interpreter?




  • Cover letter;
  • Copy of appointment letter;
  • Exhibit Sheet
  • Claim Form;
  • Application
  • Answer
  • Doctor’s First
  • Treatment reports
  • Treatment records;
  • Emergency Room records;
  • Medical records of:
  • Prior Work Comp records;
  • Prior MVA records;
  • Deposition transcript;
  • Deposition transcript (tabbed)
  • “Pain Chart” (See TAB A)
  • “Phantom Pain Path” (from depo)
  • Copy of  9785
  • Copy of Minniear
  • Physical Therapy Chart Notes;
  • Copies of 4050 consultations;
  • Records of other carriers;
  • Video Tape/Film;
  • Pictures
  • Charts;



  • Personnel file;
  • Investigative reports;
  • Witness Statements (unless cleared by atty)
  • Subrosa report;
  • Employer First Report;
  • Attorney Work product;




  • Advise Doctor of “nature” of exam;
  • Advise Doctor of time deadlines or
  • Special requests;
  • Always prepare an Exhibit List
  • Send transmittal material well prior to exam;
  • Ask Doctor to advise you asap if applicant misses exam;
  • Tell the doctor if we are “accepting” or “rejecting” claim;
  • Make sure the doctor knows who we represent;




  • Are we accepting claim;
  • Are we accepting all body parts?
  • Which body parts are in dispute;
  • Do not misstate facts;
  • Be careful about leading suggestions;
  • Ask specific questions
  • Ask what other things Doctor needs, if any;
  • Point out things in the record by reference;
  • Give the doctor enough time
  • Make sure any time deadlines are known;
  • Try and transmit information early;
  • State the purpose of the exam;
  • Make sure that all exhibits are with Exhibit List;
  • Insist that Doctor review all items and comment, where necessary;
  • Pre-authorize certain tests (to save time)
  • Draw an time or “event” line, prior to preparation of letter





  • Who you are;
  • Whom you represent;
  • The purpose of the exam (QME, etc)
  • Whom to bill;
  • Confirming date and time of exam;
  • Claim Number and person to direct report;



  • Cover Letter;
  • Appointment letter
  • Exhibit List
  • Attachments
  • Claim Form
  • Application/Answer
  • Other important pleadings;
  • Tell Doctor what to do with exhibits
  • (Job Description)
  • (Fims/Tape)


  • Rush
  • Must have by:
  • That other things will be coming;
  • You are authorized to do “X”
  • Minniear introduction
  • 9785 Introduction;
  • Please obtain MRI or Xrays from…
  • Please call….
  • Please call and confirm…..



  • Go by choronology;
  • Dates of injury;
  • Be accurate and detailed;
  • Give the applicants’ version/your version;
  • Reference evidence from the record
  • Tell doctor what is admitted and what is disputed;
  • Indicate what you authorized and what you haven’t
  • Indicate what issues are being considered;
  • Point out what specific attached items are germane



  • It is permissible to give “your theory” so long as it is not stated as fact:
  • Premise such statements as “It is believed,” or “It would appear from the current record that…”
  • Refer objectively to the record to point out disparities and discrepancies (see Primer)
  • Point out internal inconsistencies;
  • Point out external inconsistencies;
  • Point out misleading, even false histories;
  • Use the deposition to quote from;
  • Use medical records to refer to;
  • Use the “Pain Graph” (TAB A) where appropriate;
  • Explain Minniear and point out what the standard is for overcoming the presumption of correctness. 

a.  Defense QME report more CONSISTENT WITH applicant’s trial or deposition testimony;

b.  Defense QME  report is more COMPLETE  and thus more compliant with Rule 10606;

c.  Defense QME report is MORE CORRECT (show records, false history, etc)

d.  Defense QME  REVIEWED AND CONSIDERED relevant material that the PTP did not;


f.  Defense QME report is much more THOROUGH;

g. Defense QME report is MORE ACCURATE:


  • Set out the specific interrogatories;
  • Issue CheckList:

+          Injury

+          Extent of injury (aggravation?)

+          Parts of body

+          Reasonableness of care

+          Need for continuing treatment

+          Evaluation of PTP/treatment plan






            –Planned physical medicine services

+          Change in treatment plan/need to change?

+          Had PTP been “monitoring” treatment plan?

+          Frequency/duration of treatment;

+          Medications?

+          Need for change in physical medicine services

+          Diagnosis/findings

            –Findings on examination;

            –Objective examination findings;

            –Differential diagnosis;

+          Malingering/faking sick;

+          Medical history/prior injuries/prior claims;

+          Need referral for consultation in different field

+          Need 2nd opinion on…

+          Dr’s opinion upon reviewing actual MRI/Xray/”Film”.

+          Further diagnostic tests;

+          Need for hospitalization/surgery/pain mgt;

+          Need for devices/durable medical equipment

+          t.t.d./t.p.d.

+          Condition worsening;

+          Discharge from treatment;

+          Permanent and Stationary Status

+          p.d.



            –Work Restrictions;



`           +          apportionment:

                        –4663 [pre existing condition]

                        //  Progressive disease process preexisting doi;

                        //  would become disabling in absence of doi;

//  Would become disabling at definite ascertainable time prior to p and s date;

                        //  All within reasonable medical probability;

                        –4750 [pre existing disability]

                        //  Prior evidence of impairment;

                        //  Doctor must know about it and explain it;

                        //  Must be an actual disablity;

                        //  Show evidence relied upon;

                        //  Explain how and why it was in fact disabling prior to doi;


                        //  Subsequent injury unrelated;

                        //  Subsequent injury noncompensable;

                        //  Subsequent injury actually increases disablity;

            +          Future Medical Care;

            +          QIW

            +          Can return to U and C

            +          Can return to Modified work

            +          Can return to alternative

            +          Invalidity of PTP opinion/diagnosis;

            +          New and Further

            +          C.T. Claims/Western Growers;(1993 58 CCC 323)

            +          C.T. Claims/Coltharp;

  • Ask to have specific discussion on apportionment;

–Using the deposition;

–Using records;


[1] PDRS from the Administrative Director, 11/14/04, referencing the AMA Guides, 5th Edition, Page 2.

[2] Any other than ACOEM guidelines, should be specifically identified and referenced by work, date of publication, specific chapter and section, page number and applicable standard or guideline.

[i] (2005) 70 CCC 604; en banc decisions are binding upon all WCAB tribunals per 8 CCR 10341

[i] 8 CCR 10606:

[ii] 8 CCR 10600

[iii] Lab Code 4060, 4061, 4062

[iv] McAllisterr v. WCAB (1968) 69 Cal. 3d 408, 33 CCC 660;

[v] Hegglin v. WCAB (1971) 4 Cal 3d 162, 36 CCC 93; Place v. WCAB (1070) 3 Cal. 3d 372, 35 CCC 525; Zemke v. WCAB 68 C 2d 798.

[vi] Granado v. WCAB (1970) 69 Cal. 2d 39.

[vii] Escobedo (infra)

[viii] Lab C 4660 provides that the nature of the physical injury or disfigurement shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)

[ix] The AMA Guides define impairment as “a loss, loss of use, or derangement of any body part, organ system, or organ function.” ( AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, pp. 2)

[x] Escobedo v. Marshalls (2005) 70 CCC 604


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