Batten v. Workers' Compensation Appeals Board

Filed 10/28/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARGARET BATTEN, 2d Civil No. B260916 (W.C.A.B. No. ADJ3781289) Petitioner,

v.

WORKERS' COMPENSATION APPEALS BOARD; LONG BEACH MEMORIAL HOSPITAL et al.,

Respondents.

Proceeding to review a decision of the Workers' Compensation Appeals Board. Affirmed. William A. Herreras for Petitioner. Salome Jane Woodcock for Respondents Long Beach Memorial Hospital and Tristar Risk Management. Anne Schmitz, James T. Losee for Respondent Workers' Compensation Appeals Board.

In workers' compensation law, the Legislature has unambiguously declared that a privately retained expert's opinion evaluating an injured worker is not admissible as evidence before the Workers Compensation Appeals Board. Petitioner Margaret Batten asks us to harmonize what she perceives are conflicting statues and declare that her privately retained report is admissible. Whether the statues can be harmonized or not, there is no way to "harmonize" a legislative rule expressly declaring evidence to be inadmissible. There is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law. Petitioner claims that she suffered a workplace injury to her psyche. She retained a qualified medical expert at her own expense, pursuant to Labor Code section 4064, subdivision (d).1 This section provides: "All comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2." We conclude that the admission of the medical evaluation petitioner obtained is barred by section 4061, subdivision (i). We affirm the decision of the Workers' Compensation Appeals Board. Factual and Procedural Background Petitioner sustained injury to her jaw, shoulders, knees, neck, and low back arising out of and in the course of employment as a registered nurse for Long Beach Memorial Hospital. She also claims that she sustained injury to her psyche as a result of these physical injuries. The parties selected Dr. Joseph Stapen as the agreed psychiatric panel qualified medical examiner. Stapen opined that 47 percent of petitioner's psychiatric condition was caused by industrial factors. Therefore, petitioner's psychiatric injury was not a compensable industrial injury because it was not 51 percent caused by industrial factors. The WCJ authorized petitioner to retain her own qualified medical expert, Dr. Gary Stanwyck, to obtain a psychological evaluation at her own expense pursuant to