Chapter 4.5. Division of Workers' Compensation
Subchapter 2. Workers' Compensation Appeals Board--Rules and Practice Procedure
Article 11. Evidence

§ 10685. Vocational Experts' Reports as Evidence.

(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).

Note: Authority cited: Sections 133, 5307, 5309 and 5708, Labor Code. Reference: Sections 139.32, 4628, 5502(d)(3) and 5703(j), Labor Code.

HISTORY

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).