Cordova: A New Evaluator Was Ordered, With the Earlier Reports Kept in Evidence

When you have already described a psychiatric injury to a medical evaluator, a request to replace that doctor can feel like starting again. In Cordova v. Sacramento Metropolitan Fire District, No. ADJ14244361 (WCAB Sept. 16, 2024), a firefighter opposed replacing the psychologist who had evaluated her. The Workers’ Compensation Appeals Board agreed that another evaluator was needed, while keeping the earlier reports in the evidentiary record.

The decision separates three questions that can become tangled: whether the evaluator can continue impartially, whether the doctor’s reasoning follows the law, and what useful information remains in reports already prepared. The Board directed a new psychology panel and explained why the judge could weigh the existing reports as the claim moved forward. Cordova. Cordova. Cordova.

A firefighter challenged the replacement of her psychologist

Rebecca Cordova sustained a psychiatric injury in the form of post-traumatic stress disorder while working as a firefighter for Sacramento Metropolitan Fire District, during a period ending in August 2019. Initially unrepresented, she selected psychologist Joseph Nevotti as her qualified medical evaluator, or QME. He examined her and issued multiple reports. Cordova. Cordova.

The employer sought a replacement panel in July 2023, after the first part of the doctor’s deposition. It alleged that he had prejudged the case and intended to approach apportionment—the allocation of permanent disability among its causes—in a way inconsistent with the governing law. After the second deposition session in February 2024, the employer amended its request and also relied on the doctor’s communications and conduct. Cordova.

The June 2024 trial concerned that replacement request. No testimony was taken at the trial. The judge’s July 3 decision found the doctor’s conduct unprofessional, his reporting insufficient and the problems incapable of rehabilitation. It directed the parties to consider an agreed medical evaluator, or obtain another QME panel. Cordova sought reconsideration. Cordova. Cordova.

The worker’s objection required reading what the doctor actually said

Cordova argued that replacement was premature. In her reading, the doctor was asking for evidence that a preexisting condition contributed to her present disability. She also argued that he had not received deposition transcripts from her and her treating physician, which had contributed to confusion during his questioning. Those were her explanations for retaining the evaluator. Cordova. Cordova.

The Board examined a different obstacle in the testimony. As the decision recounts it, the doctor required evidence that a prior condition had impaired job performance or daily activities before the work injury. Without that earlier impairment, he would make no apportionment. He acknowledged earlier depression and anxiety, but discounted them because they had not affected functioning before the injury. Cordova.

That difference mattered. Asking whether a condition actually contributes to present permanent disability is a causation question. Treating the absence of earlier symptoms or functional impairment as a reason to exclude a possible cause at the outset applies a different test. The Board found the doctor’s stated approach inconsistent with the apportionment authorities it discussed. Cordova. Cordova.

The apportionment problem concerned the legal test, not simply an unfavorable opinion

Labor Code section 4663 bases apportionment of permanent disability on causation. In explaining the law applicable to this dispute, the Board drew on Escobedo, Nunes and City of Petaluma v. Workers’ Compensation Appeals Board (Lindh). Its point was that a preexisting condition may cause part of the present disability even if it was previously asymptomatic. The physician’s analysis must address causation and rest on substantial medical evidence. Cordova. Cordova.

For someone concerned about a reduction in disability benefits, the medical explanation deserves close attention. Identify the condition the doctor is relying on, how it contributes to present disability, and the reasoning supporting the proposed allocation. In Cordova, the Board’s concern was the evaluator’s categorical insistence on earlier impairment, considered with the rest of the record. The next evaluation needed to address the disputed medical issues under the proper framework. Cordova. Cordova.

The judge also identified problems with impartiality and conduct

The replacement decision rested on more than one disputed answer about apportionment. The judge’s report described communications it found abusive and unprofessional, separate communications with each party, an inadequate medical history and an improper demand for payment before completing a deposition. After reviewing both deposition volumes and the communications, the judge concluded that the evaluator could no longer serve impartially. The Board accepted the exercise of discretion to obtain another evaluator. Cordova. Cordova. Cordova. Cordova.

The decision’s reasoning depends on that documented record. A disagreement with a medical conclusion, an allegation of bias, and evidence that an evaluator will not follow the applicable legal standard present different problems. When reviewing a replacement request, compare the full questions and answers, the complete correspondence and the judge’s findings. An isolated excerpt may omit the explanation or the conduct that drove the ruling.

The Board changed the form of the order

The July decision contained both final findings, including injury and future medical care, and an interim order about the evaluator. Cordova challenged the interim order. The Board therefore applied the removal standard used for early review of such procedural decisions, even though the case came to it through a reconsideration petition. It concluded that her petition did not establish irreparable harm from obtaining another evaluator. Cordova. Cordova. Cordova.

The current removal rule, section 10955, requires significant prejudice or irreparable harm and a showing that reconsideration after a final decision would be inadequate. A challenge to an evaluator order needs attention to that procedural standard as well as the medical dispute. Bring the served order to counsel promptly so the appropriate review route and timing can be assessed.

The Board nevertheless granted reconsideration to rewrite the decision for procedural clarity and due process. The judge had used the word “stricken” for the evaluator. A qualifying rejection of a doctor’s report under Labor Code section 139.2(d) can affect the doctor’s reappointment as a QME. The Board explained that this separate consequence required notice and an opportunity for the physician to be heard. The parties and judge had not framed this dispute as that kind of rejection. Cordova. Cordova.

Instead, the Board used section 32.6, which permits an additional QME evaluation on a finding that it is reasonable and necessary to resolve disputed issues. It rescinded the July 3 decision, substituted that finding, granted the employer’s amended panel request and ordered a new psychology panel near the specified ZIP code. It also required service of the decision on the Medical Unit and filing proof of service in the case system. Cordova. Cordova. Cordova.

The earlier reports remained available for the judge to weigh

The Board expressly kept the earlier evaluator’s reports in evidence. A report with an unreliable medical-legal conclusion may still preserve relevant symptoms, history, diagnostic testing or clinical observations. It may also record a review of medical records that later become unavailable. The judge and Board decide the weight that information deserves. Cordova. Cordova.

This distinction protects the work already done to document an injury while allowing the medical analysis to be tested. Admitting a report into the record and accepting its conclusions are separate decisions. The current physicians’ report rule, section 10682(c), likewise distinguishes compliance problems from evidentiary weight, subject to other statutory and regulatory requirements.

For a worker, the practical task is to identify what should carry forward: the recorded history, examination findings, test results and specific issues needing a fresh opinion. Keep the complete reports, both deposition transcripts if available, the relevant correspondence, the replacement petition and the served orders together. Counsel can compare the claimed defect with the actual reason for replacement and the evidence the new evaluator will need.

Our Escobedo analysis addresses the reasoning needed to support an apportionment percentage. Vazquez concerns replacement prompted by scheduling delay, while Orozco addresses a disputed condition outside the existing evaluator’s expertise. Cordova addresses the distinct combination of impartiality, legal reasoning and the continued use of existing reports.