SECTIONS 4060-4068 - California Statutes

LABOR CODE

SECTION 4060-4068

4060. (a) This section shall apply to disputes over the
compensability of any injury. This section shall not apply where
injury to any part or parts of the body is accepted as compensable by
the employer.
(b) Neither the employer nor the employee shall be liable for any
comprehensive medical-legal evaluation performed by other than the
treating physician, except as provided in this section. However,
reports of treating physicians shall be admissible.
(c) If a medical evaluation is required to determine
compensability at any time after the filing of the claim form, and
the employee is represented by an attorney, a medical evaluation to
determine compensability shall be obtained only by the procedure
provided in Section 4062.2.
(d) If a medical evaluation is required to determine
compensability at any time after the claim form is filed, and the
employee is not represented by an attorney, the employer shall
provide the employee with notice either that the employer requests a
comprehensive medical evaluation to determine compensability or that
the employer has not accepted liability and the employee may request
a comprehensive medical evaluation to determine compensability.
Either party may request a comprehensive medical evaluation to
determine compensability. The evaluation shall be obtained only by
the procedure provided in Section 4062.1.
(e) (1) Each notice required by subdivision (d) shall describe the
administrative procedures available to the injured employee and
advise the employee of his or her right to consult an information and
assistance officer or an attorney. It shall contain the following
language:
"Should you decide to be represented by an attorney, you may or
may not receive a larger award, but, unless you are determined to be
ineligible for an award, the attorney's fee will be deducted from any
award you might receive for disability benefits. The decision to be
represented by an attorney is yours to make, but it is voluntary and
may not be necessary for you to receive your benefits."
(2) The notice required by subdivision (d) shall be accompanied by
the form prescribed by the administrative director for requesting
the assignment of a panel of qualified medical evaluators.

4061. (a) Together with the last payment of temporary disability
indemnity, the employer shall, in a form prescribed by the
administrative director pursuant to Section 138.4, provide the
employee one of the following:
(1) Notice either that no permanent disability indemnity will be
paid because the employer alleges the employee has no permanent
impairment or limitations resulting from the injury or notice of the
amount of permanent disability indemnity determined by the employer
to be payable. The notice shall include information concerning how
the employee may obtain a formal medical evaluation pursuant to
subdivision (c) or (d) if he or she disagrees with the position taken
by the employer. The notice shall be accompanied by the form
prescribed by the administrative director for requesting assignment
of a panel of qualified medical evaluators, unless the employee is
represented by an attorney. If the employer determines permanent
disability indemnity is payable, the employer shall advise the
employee of the amount determined payable and the basis on which the
determination was made and whether there is need for continuing
medical care.
(2) Notice that permanent disability indemnity may be or is
payable, but that the amount cannot be determined because the
employee's medical condition is not yet permanent and stationary. The
notice shall advise the employee that his or her medical condition
will be monitored until it is permanent and stationary, at which time
the necessary evaluation will be performed to determine the
existence and extent of permanent impairment and limitations for the
purpose of rating permanent disability and to determine the need for
continuing medical care, or at which time the employer will advise
the employee of the amount of permanent disability indemnity the
employer has determined to be payable. If an employee is provided
notice pursuant to this paragraph and the employer later takes the
position that the employee has no permanent impairment or limitations
resulting from the injury, or later determines permanent disability
indemnity is payable, the employer shall in either event, within 14
days of the determination to take either position, provide the
employee with the notice specified in paragraph (1).
(b) Each notice required by subdivision (a) shall describe the
administrative procedures available to the injured employee and
advise the employee of his or her right to consult an information and
assistance officer or an attorney. It shall contain the following
language:
"Should you decide to be represented by an attorney, you may or
may not receive a larger award, but, unless you are determined to be
ineligible for an award, the attorney's fee will be deducted from any
award you might receive for disability benefits. The decision to be
represented by an attorney is yours to make, but it is voluntary and
may not be necessary for you to receive your benefits."
(c) If the parties do not agree to a permanent disability rating
based on the treating physician's evaluation, and the employee is
represented by an attorney, a medical evaluation to determine
permanent disability shall be obtained as provided in Section 4062.2.
(d) If the parties do not agree to a permanent disability rating
based on the treating physician's evaluation, and if the employee is
not represented by an attorney, the employer shall immediately
provide the employee with a form prescribed by the medical director
with which to request assignment of a panel of three qualified
medical evaluators. Either party may request a comprehensive medical
evaluation to determine permanent disability, and the evaluation
shall be obtained only by the procedure provided in Section 4062.1.
(e) The qualified medical evaluator who has evaluated an
unrepresented employee shall serve the comprehensive medical
evaluation and the summary form on the employee, employer, and the
administrative director. The unrepresented employee or the employer
may submit the treating physician's evaluation for the calculation of
a permanent disability rating. Within 20 days of receipt of the
comprehensive medical evaluation, the administrative director shall
calculate the permanent disability rating according to Section 4660
and serve the rating on the employee and employer.
(f) Any comprehensive medical evaluation concerning an
unrepresented employee which indicates that part or all of an
employee's permanent impairment or limitations may be subject to
apportionment pursuant to Sections 4663 and 4664 shall first be
submitted by the administrative director to a workers' compensation
judge who may refer the report back to the qualified medical
evaluator for correction or clarification if the judge determines the
proposed apportionment is inconsistent with the law.
(g) Within 30 days of receipt of the rating, if the employee is
unrepresented, the employee or employer may request that the
administrative director reconsider the recommended rating or obtain
additional information from the treating physician or medical
evaluator to address issues not addressed or not completely addressed
in the original comprehensive medical evaluation or not prepared in
accord with the procedures promulgated under paragraph (2) or (3) of
subdivision (j) of Section 139.2. This request shall be in writing,
shall specify the reasons the rating should be reconsidered, and
shall be served on the other party. If the administrative director
finds the comprehensive medical evaluation is not complete or not in
compliance with the required procedures, the administrative director
shall return the report to the treating physician or qualified
medical evaluator for appropriate action as the administrative
director instructs. Upon receipt of the treating physician's or
qualified medical evaluator's final comprehensive medical evaluation
and summary form, the administrative director shall recalculate the
permanent disability rating according to Section 4660 and serve the
rating, the comprehensive medical evaluation, and the summary form on
the employee and employer.
(h) (1) If a comprehensive medical evaluation from the treating
physician or an agreed medical evaluator or a qualified medical
evaluator selected from a three-member panel resolves any issue so as
to require an employer to provide compensation, the employer shall
commence the payment of compensation or promptly commence proceedings
before the appeals board to resolve the dispute.
(2) If the employee and employer agree to a stipulated findings
and award as provided under Section 5702 or to compromise and release
the claim under Chapter 2 (commencing with Section 5000) of Part 3,
or if the employee wishes to commute the award under Chapter 3
(commencing with Section 5100) of Part 3, the appeals board shall
first determine whether the agreement or commutation is in the best
interests of the employee and whether the proper procedures have been
followed in determining the permanent disability rating. The
administrative director shall promulgate a form to notify the
employee, at the time of service of any rating under this section, of
the options specified in this subdivision, the potential advantages
and disadvantages of each option, and the procedure for disputing the
rating.
(i) No issue relating to the existence or extent of permanent
impairment and limitations resulting from the injury may be the
subject of a declaration of readiness to proceed unless there has
first been a medical evaluation by a treating physician or an agreed
or qualified medical evaluator. With the exception of an evaluation
or evaluations prepared by the treating physician or physicians, no
evaluation of permanent impairment and limitations resulting from the
injury shall be obtained, except in accordance with Section 4062.1
or 4062.2. Evaluations obtained in violation of this prohibition
shall not be admissible in any proceeding before the appeals board.

4061.5. The treating physician primarily responsible for managing
the care of the injured worker or the physician designated by that
treating physician shall, in accordance with rules promulgated by the
administrative director, render opinions on all medical issues
necessary to determine eligibility for compensation. In the event
that there is more than one treating physician, a single report shall
be prepared by the physician primarily responsible for managing the
injured worker's care that incorporates the findings of the various
treating physicians.

4062. (a) If either the employee or employer objects to a medical
determination made by the treating physician concerning any medical
issues not covered by Section 4060 or 4061 and not subject to Section
4610, the objecting party shall notify the other party in writing of
the objection within 20 days of receipt of the report if the
employee is represented by an attorney or within 30 days of receipt
of the report if the employee is not represented by an attorney.
Employer objections to the treating physician's recommendation for
spinal surgery shall be subject to subdivision (b), and after denial
of the physician's recommendation, in accordance with Section 4610.
If the employee objects to a decision made pursuant to Section 4610
to modify, delay, or deny a treatment recommendation, the employee
shall notify the employer of the objection in writing within 20 days
of receipt of that decision. These time limits may be extended for
good cause or by mutual agreement. If the employee is represented by
an attorney, a medical evaluation to determine the disputed medical
issue shall be obtained as provided in Section 4062.2, and no other
medical evaluation shall be obtained. If the employee is not
represented by an attorney, the employer shall immediately provide
the employee with a form prescribed by the medical director with
which to request assignment of a panel of three qualified medical
evaluators, the evaluation shall be obtained as provided in Section
4062.1, and no other medical evaluation shall be obtained.
(b) The employer may object to a report of the treating physician
recommending that spinal surgery be performed within 10 days of the
receipt of the report. If the employee is represented by an attorney,
the parties shall seek agreement with the other party on a
California licensed board-certified or board-eligible orthopedic
surgeon or neurosurgeon to prepare a second opinion report resolving
the disputed surgical recommendation. If no agreement is reached
within 10 days, or if the employee is not represented by an attorney,
an orthopedic surgeon or neurosurgeon shall be randomly selected by
the administrative director to prepare a second opinion report
resolving the disputed surgical recommendation. Examinations shall be
scheduled on an expedited basis. The second opinion report shall be
served on the parties within 45 days of receipt of the treating
physician's report. If the second opinion report recommends surgery,
the employer shall authorize the surgery. If the second opinion
report does not recommend surgery, the employer shall file a
declaration of readiness to proceed. The employer shall not be liable
for medical treatment costs for the disputed surgical procedure,
whether through a lien filed with the appeals board or as a
self-procured medical expense, or for periods of temporary disability
resulting from the surgery, if the disputed surgical procedure is
performed prior to the completion of the second opinion process
required by this subdivision.
(c) The second opinion physician shall not have any material
professional, familial, or financial affiliation, as determined by
the administrative director, with any of the following:
(1) The employer, his or her workers' compensation insurer,
third-party claims administrator, or other entity contracted to
provide utilization review services pursuant to Section 4610.
(2) Any officer, director, or employee of the employer's health
care provider, workers' compensation insurer, or third-party claims
administrator.
(3) A physician, the physician's medical group, or the independent
practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed
health care service, or the alternative service, if any, recommended
by the employer's health care provider, workers' compensation
insurer, or third-party claims administrator, would be provided.
(5) The development or manufacture of the principal drug, device,
procedure, or other therapy proposed by the employee or his or her
treating physician whose treatment is under review, or the
alternative therapy, if any, recommended by the employer or other
entity.
(6) The employee or the employee's immediate family.

4062.1. (a) If an employee is not represented by an attorney, the
employer shall not seek agreement with the employee on an agreed
medical evaluator, nor shall an agreed medical evaluator prepare the
formal medical evaluation on any issues in dispute.
(b) If either party requests a medical evaluation pursuant to
Section 4060, 4061, or 4062, either party may submit the form
prescribed by the administrative director requesting the medical
director to assign a panel of three qualified medical evaluators in
accordance with Section 139.2. However, the employer may not submit
the form unless the employee has not submitted the form within 10
days after the employer has furnished the form to the employee and
requested the employee to submit the form. The party submitting the
request form shall designate the specialty of the physicians that
will be assigned to the panel.
(c) Within 10 days of the issuance of a panel of qualified medical
evaluators, the employee shall select a physician from the panel to
prepare a medical evaluation, the employee shall schedule the
appointment, and the employee shall inform the employer of the
selection and the appointment. If the employee does not inform the
employer of the selection within 10 days of the assignment of a panel
of qualified medical evaluators, then the employer may select the
physician from the panel to prepare a medical evaluation. If the
employee informs the employer of the selection within 10 days of the
assignment of the panel but has not made the appointment, or if the
employer selects the physician pursuant to this subdivision, then the
employer shall arrange the appointment. Upon receipt of written
notice of the appointment arrangements from the employee, or upon
giving the employee notice of an appointment arranged by the
employer, the employer shall furnish payment of estimated travel
expense.
(d) The evaluator shall give the employee, at the appointment, a
brief opportunity to ask questions concerning the evaluation process
and the evaluator's background. The unrepresented employee shall then
participate in the evaluation as requested by the evaluator unless
the employee has good cause to discontinue the evaluation. For
purposes of this subdivision, "good cause" shall include evidence
that the evaluator is biased against the employee because of his or
her race, sex, national origin, religion, or sexual preference or
evidence that the evaluator has requested the employee to submit to
an unnecessary medical examination or procedure. If the unrepresented
employee declines to proceed with the evaluation, he or she shall
have the right to a new panel of three qualified medical evaluators
from which to select one to prepare a comprehensive medical
evaluation. If the appeals board subsequently determines that the
employee did not have good cause to not proceed with the evaluation,
the cost of the evaluation shall be deducted from any award the
employee obtains.
(e) If an employee has received a comprehensive medical-legal
evaluation under this section, and he or she later becomes
represented by an attorney, he or she shall not be entitled to an
additional evaluation.

4062.2. (a) Whenever a comprehensive medical evaluation is required
to resolve any dispute arising out of an injury or a claimed injury
occurring on or after January 1, 2005, and the employee is
represented by an attorney, the evaluation shall be obtained only as
provided in this section.
(b) If either party requests a medical evaluation pursuant to
Section 4060, 4061, or 4062, either party may commence the selection
process for an agreed medical evaluator by making a written request
naming at least one proposed physician to be the evaluator. The
parties shall seek agreement with the other party on the physician,
who need not be a qualified medical evaluator, to prepare a report
resolving the disputed issue. If no agreement is reached within 10
days of the first written proposal that names a proposed agreed
medical evaluator, or any additional time not to exceed 20 days
agreed to by the parties, either party may request the assignment of
a three-member panel of qualified medical evaluators to conduct a
comprehensive medical evaluation. The party submitting the request
shall designate the specialty of the medical evaluator, the specialty
of the medical evaluator requested by the other party if it has been
made known to the party submitting the request, and the specialty of
the treating physician. The party submitting the request form shall
serve a copy of the request form on the other party.
(c) Within 10 days of assignment of the panel by the
administrative director, the parties shall confer and attempt to
agree upon an agreed medical evaluator selected from the panel. If
the parties have not agreed on a medical evaluator from the panel by
the 10th day after assignment of the panel, each party may then
strike one name from the panel. The remaining qualified medical
evaluator shall serve as the medical evaluator. If a party fails to
exercise the right to strike a name from the panel within three
working days of gaining the right to do so, the other party may
select any physician who remains on the panel to serve as the medical
evaluator. The administrative director may prescribe the form, the
manner, or both, by which the parties shall conduct the selection
process.
(d) The represented employee shall be responsible for arranging
the appointment for the examination, but upon his or her failure to
inform the employer of the appointment within 10 days after the
medical evaluator has been selected, the employer may arrange the
appointment and notify the employee of the arrangements.
(e) If an employee has received a comprehensive medical-legal
evaluation under this section, and he or she later ceases to be
represented, he or she shall not be entitled to an additional
evaluation.

4062.3. (a) Any party may provide to the qualified medical
evaluator selected from a panel any of the following information:
(1) Records prepared or maintained by the employee's treating
physician or physicians.
(2) Medical and nonmedical records relevant to determination of
the medical issue.
(b) Information that a party proposes to provide to the qualified
medical evaluator selected from a panel shall be served on the
opposing party 20 days before the information is provided to the
evaluator. If the opposing party objects to consideration of
nonmedical records within 10 days thereafter, the records shall not
be provided to the evaluator. Either party may use discovery to
establish the accuracy or authenticity of nonmedical records prior to
the evaluation.
(c) If an agreed medical evaluator is selected, as part of their
agreement on an evaluator, the parties shall agree on what
information is to be provided to the agreed medical evaluator.
(d) In any formal medical evaluation, the agreed or qualified
medical evaluator shall identify the following:
(1) All information received from the parties.
(2) All information reviewed in preparation of the report.
(3) All information relied upon in the formulation of his or her
opinion.
(e) All communications with an agreed medical evaluator or a
qualified medical evaluator selected from a panel before a medical
evaluation shall be in writing and shall be served on the opposing
party 20 days in advance of the evaluation. Any subsequent
communication with the medical evaluator shall be in writing and
shall be served on the opposing party when sent to the medical
evaluator.
(f) Ex parte communication with an agreed medical evaluator or a
qualified medical evaluator selected from a panel is prohibited. If a
party communicates with the agreed medical evaluator or the
qualified medical evaluator in violation of subdivision (e), the
aggrieved party may elect to terminate the medical evaluation and
seek a new evaluation from another qualified medical evaluator to be
selected according to Section 4062.1 or 4062.2, as applicable, or
proceed with the initial evaluation.
(g) The party making the communication prohibited by this section
shall be subject to being charged with contempt before the appeals
board and shall be liable for the costs incurred by the aggrieved
party as a result of the prohibited communication, including the cost
of the medical evaluation, additional discovery costs, and attorney'
s fees for related discovery.
(h) Subdivisions (e) and (f) shall not apply to oral or written
communications by the employee or, if the employee is deceased, the
employee's dependent, in the course of the examination or at the
request of the evaluator in connection with the examination.
(i) Upon completing a determination of the disputed medical issue,
the medical evaluator shall summarize the medical findings on a form
prescribed by the administrative director and shall serve the formal
medical evaluation and the summary form on the employee and the
employer. The medical evaluation shall address all contested medical
issues arising from all injuries reported on one or more claim forms
prior to the date of the employee's initial appointment with the
medical evaluator.
(j) If, after a medical evaluation is prepared, the employer or
the employee subsequently objects to any new medical issue, the
parties, to the extent possible, shall utilize the same medical
evaluator who prepared the previous evaluation to resolve the medical
dispute.
(k) No disputed medical issue specified in subdivision (a) may be
the subject of declaration of readiness to proceed unless there has
first been an evaluation by the treating physician or an agreed or
qualified medical evaluator.

4062.5. If a qualified medical evaluator selected from a panel
fails to complete the formal medical evaluation within the timeframes
established by the administrative director pursuant to paragraph (1)
of subdivision (j) of Section 139.2, a new evaluation may be
obtained upon the request of either party, as provided in Sections
4062.1 or 4062.2. Neither the employee nor the employer shall have
any liability for payment for the formal medical evaluation which was
not completed within the required timeframes unless the employee or
employer, on forms prescribed by the administrative director, each
waive the right to a new evaluation and elects to accept the original
evaluation even though it was not completed within the required
timeframes.

4062.8. The administrative director shall develop, not later than
January 1, 2004, and periodically revise as necessary thereafter,
educational materials to be used to provide treating physicians, as
described in Section 3209.3, or other providers, as described in
Section 3209.5, with information and training in basic concepts of
workers' compensation, the role of the treating physician, the
conduct of permanent and stationary evaluations, and report writing,
as appropriate.

4063. If a formal medical evaluation from an agreed medical
evaluator or a qualified medical evaluator selected from a three
member panel resolves any issue so as to require an employer to
provide compensation, the employer shall commence the payment of
compensation or file an application for adjudication of claim.

4064. (a) The employer shall be liable for the cost of each
reasonable and necessary comprehensive medical-legal evaluation
obtained by the employee pursuant to Sections 4060, 4061, and 4062.
Each comprehensive medical-legal evaluation shall address all
contested medical issues arising from all injuries reported on one or
more claim forms.
(b) For injuries occurring on or after January 1, 2003, if an
unrepresented employee obtains an attorney after the evaluation
pursuant to subdivision (d) of Section 4061 or subdivision (b) of
Section 4062 has been completed, the employee shall be entitled to
the same reports at employer expense as an employee who has been
represented from the time the dispute arose and those reports shall
be admissible in any proceeding before the appeals board.
(c) Subject to Section 4906, if an employer files an application
for adjudication and the employee is unrepresented at the time the
application is filed, the employer shall be liable for any attorney's
fees incurred by the employee in connection with the application for
adjudication.
(d) The employer shall not be liable for the cost of any
comprehensive medical evaluations obtained by the employee other than
those authorized pursuant to Sections 4060, 4061, and 4062. However,
no party is prohibited from obtaining any medical evaluation or
consultation at the party's own expense. In no event shall an
employer or employee be liable for an evaluation obtained in
violation of subdivision (b) of Section 4060. All comprehensive
medical evaluations obtained by any party shall be admissible in any
proceeding before the appeals board except as provided in
subdivisions (d) and (m) of Section 4061 and subdivisions (b) and (e)
of Section 4062.

4066. When the employer files an application for adjudication of
claim contesting the formal medical evaluation prepared by an agreed
medical evaluator under this article, regardless of outcome, the
workers' compensation judge or the appeals board shall assess the
employee's attorney's fees against the employer, subject to Section
4906.

4067. If the jurisdiction of the appeals board is invoked pursuant
to Section 5803 upon the grounds that the effects of the injury have
recurred, increased, diminished, or terminated, a formal medical
evaluation shall be obtained pursuant to this article.
When an agreed medical evaluator or a qualified medical evaluator
selected by an unrepresented employee from a three-member panel has
previously made a formal medical evaluation of the same or similar
issues, the subsequent or additional formal medical evaluation shall
be conducted by the same agreed medical evaluator or qualified
medical evaluator, unless the workers' compensation judge has made a
finding that he or she did not rely on the prior evaluator's formal
medical evaluation, any party contested the original medical
evaluation by filing an application for adjudication, the
unrepresented employee hired an attorney and selected a qualified
medical evaluator to conduct another evaluation pursuant to
subdivision (b) of Section 4064, or the prior evaluator is no longer
qualified or readily available to prepare a formal medical
evaluation, in which case Sections 4061 or 4062, as the case may be,
shall apply as if there had been no prior formal medical evaluation.

4067.5. This article shall become operative for injuries occurring
on and after January 1, 1991.

4068. (a) Upon determining that a treating physician's report
contains opinions that are the result of conjecture, are not
supported by adequate evidence, or that indicate bias, the appeals
board shall so notify the administrative director in writing in a
manner he or she has specified.
(b) If the administrative director believes that any treating
physician's reports show a pattern of unsupported opinions, he or she
shall notify in writing the physician's applicable licensing body of
his or her findings.