Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) The Workers' Compensation Appeals Board
favors the production of vocational expert evidence in the form of written
reports. Direct examination of a vocational expert witness will not be received
at a trial except upon a showing of good cause. Good cause shall not be found
if the vocational expert witness has not issued a report and the party offering
the witness fails to demonstrate that it exercised due diligence in attempting
to obtain a report. A continuance may be granted for rebuttal testimony if a
report that was not served sufficiently in advance of the close of discovery to
permit rebuttal is admitted into evidence.
(b) A vocational expert's written report
shall meet the following requirements:
(1)
The report shall contain a declaration by the vocational expert signing the
report stating: "I declare under penalty of perjury that the information
contained in this report and its attachments, if any, is true and correct to
the best of my knowledge, except as to information that I have indicated I
received from others. As to that information, I declare under penalty of
perjury that the information accurately describes the information provided to
me and, except as noted herein, that I believe it to be true. I further declare
under penalty of perjury that there has not been a violation of Labor Code
section 139.32." The foregoing declaration shall be dated and signed by the
vocational expert and shall indicate the county wherein it was
signed.
(2) The report shall
disclose the qualifications of the vocational expert signing the report, which
may be satisfied by attaching a curriculum vitae.
(3) Except as provided in subdivision (b)(4),
the body of the report shall contain a statement, above the declaration under
penalty of perjury, that: "No person, other than the vocational expert signing
the report, has participated in the non-clerical preparation of the report,
including all of the following:
(i) Taking a
history from the employee;
(ii)
Reviewing and summarizing medical and/or non-medical records; and
(iii) Composing and drafting the conclusions
of the report."
(4)
Notwithstanding subdivision (b)(3), it is permissible for a person or persons,
other than the vocational expert signing the report, to prepare an initial
outline of the employee's history and/or to excerpt prior medical and
non-medical records. If this is done, however, the vocational expert signing
the report:
(A) Shall review the excerpts and
the entire outline and shall make additional inquiries and examinations as are
necessary and appropriate to identify and determine the relevant
issues;
(B) Shall include in the
statement required by subdivision (b)(3) that, as applicable, an initial
outline of the employee's history and/or an excerpt of the employee's prior
medical and non-medical records were prepared by another person or persons and
that the vocational expert signing the report has reviewed any such excerpts
and/or outline and has made any additional inquiries and examinations necessary
and appropriate to identify and determine the relevant issues; and
(C) Shall comply with subdivision (b)(5),
below.
(5) The report
shall disclose the name(s) and qualifications of each person who performed any
services in connection with the report, including diagnostic studies, other
than its clerical preparation.
(c) The vocational expert's report should
include, where applicable:
(1) The date(s) of
any evaluation(s), interview(s) and test(s);
(2) The history of the injury;
(3) The employee's vocational
history;
(4) The injured employee's
complaints;
(5) A listing of all
information reviewed in preparation of the report or relied upon for the
formulation of the vocational expert's opinion;
(6) The injured employee's medical history,
including injuries and conditions, and residuals thereof, if any;
(7) Findings and opinion on
evaluation;
(8) The reasons for the
opinion; and
(9) The signature of
the vocational expert.
A failure to comply with the requirements of subdivision
(c) will not make the report inadmissible but will be considered in weighing
the evidence.
(d)
Statements concerning any vocational expert's bill for services are admissible
only if they comply with subdivision (b)(1).
1.
Renumbering and amendment of former section
10606.5 to section 10685 filed
12-17-2019; operative 1-1-2020. Submitted to OAL for printing only pursuant to
Government Code section
11351
(Register 2019, No. 51).
Note: Authority cited: Sections
133,
5307,
5309 and
5708, Labor
Code. Reference: Sections
139.32,
4628,
5502(d)(3)
and
5703(j),
Labor Code.
