WCAB Distinguishes DPR Construction in Post-MSC Evidence Dispute

Rhodes offers a practical 2026 panel-level application of Labor Code section 5502 after the published Court of Appeal decision in DPR Construction.

Read the official WCAB panel decision.

A Dispute Over Reports Offered After the MSC

Wanda Rhodes sustained admitted injury while working as a physical-education teacher. The litigation later involved additional claimed conditions and a dispute over supplemental QME reports, older pain-psychology reports, and a proposal for additional QME panels.

Some reports did not exist at the time of the mandatory settlement conference. Others existed but were not separately listed on the pretrial conference statement.

Later QME Reports Were Properly Admitted

The WCJ continued trial to permit supplemental reporting. The employer participated in that discovery and requested continuances while awaiting the same reports. Because those documents did not exist at the MSC and the court had authorized further development, the Board admitted them.

The panel observed that a party dissatisfied with the WCJ’s good-cause determination could have timely sought removal. Participating in the ordered discovery and later objecting to its fruits created a difficult procedural position.

Why the Older Treatment Reports Also Entered the Record

The pain-psychology reports had been reviewed by treating and medical-legal physicians and were incorporated into the broader medical record. Statutes permit reports of attending or examining physicians to be provided to evaluators and received in evidence.

The panel admitted the reports while leaving their weight and the unresolved medical issues for the WCJ.

How Rhodes Distinguished DPR Construction

In DPR Construction, unlisted reports were admitted in connection with a final merits decision despite section 5502’s discovery cutoff. Rhodes involved an ongoing proceeding in which the WCJ had ordered development of the record and no final merits determination had yet issued.

The panel therefore concluded that admitting the documents would not deprive the defendant of a fair opportunity to challenge their weight or develop responsive evidence.

Practical Lessons About the MSC Cutoff

• List every known report and witness on the pretrial conference statement.
• Make a clear record when evidence did not exist or could not be discovered earlier.
• Seek removal promptly if a WCJ’s discovery order allegedly causes irreparable harm.
• Do not assume that participation in post-MSC discovery preserves every later objection.
• Distinguish admissibility from the weight ultimately assigned to a medical report.

Because Rhodes is a panel decision, practitioners should use it cautiously, particularly where its fact-specific distinction from published appellate authority may be contested.