Labor Code 4628: The Rules That Decide Whether a QME Report Is Admissible and Paid
Short answer: Labor Code §4628 controls who may prepare a California medical-legal report, what the report must disclose, and what the report must declare. A report that does not comply is inadmissible as evidence and creates no liability for payment, meaning the physician can do the entire evaluation and write the entire report and receive nothing for it. Knowing violations add a civil penalty of up to $1,000 per violation, possible suspension or termination as a QME, and contempt. 8 CCR §35.5 adds the location and scope requirements, and Labor Code §139.3 bans self-referral.
Most physicians learn these rules once for the QME exam and forget them. They come back at inconvenient times: a defense attorney requesting a CV eight months after a report was served, a scheduling conflict at the panel office, a records service offering to summarize the file. Session 2 of Perry J. Carpenter, DC, QME's report writing course goes through §4628 subdivision by subdivision. What follows is that walkthrough in plain language.
§4628(a): who may prepare the report
Nobody other than the physician who signs the report may examine the injured worker or take part in the non-clerical preparation of the report. The statute names three tasks specifically: taking the complete history, reviewing and summarizing prior medical records, and composing and drafting the conclusions. The one exception is a nurse doing what nurses routinely do, taking blood pressure and the like.
The purpose is to end the practice of physicians paying report writers to produce reports they then sign. The conclusions have to be the signing physician's own.
§4628(b): what the report must disclose
Four disclosures, all of which end up as standard paragraphs near the signature:
- The date and location of the evaluation.
- That the physician signing the report actually performed the evaluation.
- Whether the evaluation and the time spent on it complied with the Administrative Director's guidelines. If not, the report has to explain the variance in detail and give the reasons.
- The name and qualifications of every person who performed any service in connection with the report, other than clerical preparation. Diagnostic studies count. Transcription does not.
Location gets its own treatment below, because the DWC treats it more seriously than the single sentence suggests.
§4628(c): when someone else reviews the records
This is the subdivision that matters most for how a QME practice is actually run.
If the initial outline of the history or the excerpting of prior records is done by someone other than the physician, the physician must review the excerpts and the entire outline and make whatever additional inquiries and examinations are necessary to identify the relevant medical issues.
Read together with (a), this is the statutory shape of record review: the physician may use help to organize and excerpt the file, and the physician may not delegate the judgment about what in the file matters. Reviewing the excerpts is a duty, not a formality. Accepting a summary at face value is exactly what the subdivision prohibits.
Dr. Carpenter's own position goes further than the statute. He reads every page himself, on the theory that relevance is a medical judgment no third-party reviewer can make for the evaluating physician, and that if the case goes to deposition he will end up reading the whole file anyway. Plenty of evaluators disagree and use summarization services, which the law allows. What the law does not allow is signing a report whose review of records section the physician has not actually reviewed.
§4628(d): what can be charged
Charges are limited to the direct cost of the physician's professional services, which already includes reasonable overhead, plus the reasonable cost of laboratory work, diagnostic studies, other tests, and the clerical expense of producing the report. Outside diagnostic services cannot be marked up above the physician's own professional fees.
§4628(e) and (f): the consequences
Subdivision (e) is the one that should be framed on the wall. Failure to comply with §4628 makes the report inadmissible as evidence and eliminates any liability for payment of any medical-legal expense connected with it.
That is the whole downside in one sentence. The evaluation happened, the report was written, and because a disclosure was missing, the report cannot be used and nobody has to pay for it.
Subdivision (f) adds that a knowing failure to comply carries a civil penalty of up to $1,000 per violation, assessed by a workers' compensation judge or the Appeals Board. Note the word "each." A report with three missing disclosures is three violations.
Omitting a disclosure you know you cannot truthfully make is itself a knowing failure. The statute closes the obvious workaround.
§4628(g), (h), and (i): the follow-on consequences
A physician assessed a civil penalty under (f) may be terminated, suspended, or placed on probation as a QME. Probation is survivable but unpleasant: a QME on probation may have to disclose that status to examinees and give them the option of a different evaluator.
Knowing non-compliance is also contempt under the Appeals Board's judicial powers.
Subdivision (i) requires anyone billing for evaluations, diagnostic procedures, or services performed by people not employed by the reporting physician or the physician's medical corporation to state the amount paid or to be paid to those people. The Administrative Director has clearly seen pass-through billing abused.
§4628(j): the declaration
Every medical-legal report ends with a declaration under penalty of perjury. In substance, the physician declares that the information in the report and its attachments is true and correct to the best of the physician's knowledge and belief, and, for information received from others, that the report accurately describes the information provided. The declaration has to be dated and signed and has to state the county where it was signed.
The second half of that declaration has a practical consequence for the review of records. If the report lists and summarizes only some of the records received, it does not accurately describe the information provided, and the declaration is false. Claims administrators typically send a log of what they produced along with the production. Comparing the log against what actually arrived, and against what the report lists, is how a physician protects that declaration.
§4628(k): the CV request
On request, the physician must provide a curriculum vitae and a statement of the percentage of total practice time devoted annually to medical treatment.
This is the subdivision behind the puzzling letter from defense counsel months after the report went out. The percentage matters because QME eligibility requires at least one-third of practice time in direct treatment. An attorney who wants the report excluded under (e) may be checking whether the evaluator still qualifies. Provide the CV and the statement. There is no fee for it under the fee schedule, and refusing is a §4628 violation with everything that follows.
8 CCR §35.5: location, scope, and referral out
Three subdivisions of the regulation do work the statute does not.
§35.5(b), location. The report must state, in the body, the date the examination was completed and the street address where it was performed. If the report is signed on a different date, the signing date goes next to the signature. Separately, DWC rules require the initial evaluation to happen at the office listed on the panel. Moving an examinee's first visit to a satellite office is a discipline issue on its own; stating the panel address when the exam happened elsewhere is a false statement in a report signed under penalty of perjury. If the panel office cannot accommodate the visit, the visit gets rescheduled or the evaluation is given up. It does not get relocated.
§35.5(c), scope. The evaluator must address every contested medical issue arising from every injury reported on a claim form before the appointment, within the evaluator's scope and competence, and must attempt to answer every question in each party's cover letter. Physicians rarely see the claim forms themselves, so the cover letters define the scope in practice. Templated questions still have to be answered. When the records show treatment to a body part the cover letter never mentions, the safe move is to write to the parties asking whether it belongs in the evaluation, in writing so nobody can allege ex parte contact. If the evaluator finds permanent partial disability, (c)(2) also requires completing and serving the DWC's report of permanent and stationary status and work capacity along with the report.
§35.5(d), issues outside your specialty. When a disputed issue is outside the evaluator's scope of practice, the evaluator must tell the parties in writing, no later than the date the report is served, so they can obtain an evaluation in the right specialty under Labor Code §§4062.1 or 4062.2. A copy goes to the DWC Medical Director at the same time. The written notice is not a courtesy. The Medical Director will only issue a new panel in another specialty on a party's request with the evaluator's notice attached, or on a judge's order. Without the notice, the case stalls.
Labor Code §139.3: no self-referral
The self-referral ban prohibits a physician from referring a person for a long list of services, including laboratory, diagnostic imaging, physical therapy, psychometric testing, outpatient surgery, and pharmacy goods, whether for treatment or medical-legal purposes, if the physician or an immediate family member has a financial interest in the entity receiving the referral.
The point is the same as the rest of this body of law: the evaluator is supposed to have no stake in the outcome beyond an accurate opinion. The DWC has watched physicians build toxicology labs and imaging centers off their own referrals and has seen the arrests that followed.
What this means for how a QME practice is built
Every rule above is a rule about the relationship between the physician and the file. The physician must review the records, must accurately describe what was received, must declare under penalty of perjury that the description is accurate, and must be able to say under oath which records informed which opinions.
That is not compatible with a workflow where a service hands over a five-page summary and the physician signs a review of records section written by someone else. It is compatible with a workflow where the full production is organized, indexed, and cited to the page, and the physician reads the organized version with the source one click away.
Lexamed is the second workflow. It reads the entire production and produces a chronology where every entry cites its page, flags the records that bear on causation and MMI, and drafts the review of records section from the actual documents. The physician remains the reviewer of record, which is what §4628(c) requires. The difference is that the review is of a file that has been made reviewable.
Frequently asked questions
What is Labor Code 4628? The California statute governing who may prepare a medical-legal report, what the report must disclose, and what the physician must declare. Non-compliance makes the report inadmissible and eliminates liability for payment; knowing non-compliance carries civil penalties of up to $1,000 per violation.
Can a QME use a service to summarize medical records? Yes, with a condition. Under Labor Code §4628(c), if someone other than the physician excerpts the records or outlines the history, the physician must review the excerpts and the entire outline and make any additional inquiries needed to identify the relevant issues. The judgment about what matters stays with the physician.
What happens if a QME report does not comply with Labor Code 4628? Under §4628(e), the report is inadmissible as evidence and there is no liability to pay for it. Under §4628(f), a knowing failure carries a civil penalty of up to $1,000 per violation, and under §4628(g) a physician assessed a penalty may be suspended, terminated, or placed on probation as a QME.
Why would a defense attorney request a QME's curriculum vitae? Labor Code §4628(k) requires a physician to provide a CV on request, along with a statement of the percentage of practice time devoted to medical treatment. Attorneys sometimes use the request to test whether the evaluator meets eligibility requirements or whether the report can be challenged under §4628(e).
Where must a QME perform the initial evaluation? At the office address listed on the QME panel. 8 CCR §35.5(b) requires the report to state the street address where the examination was performed, and stating an address other than the one actually used is a false statement in a report signed under penalty of perjury.
What should a QME do if an issue is outside their specialty? Notify the parties in writing no later than the date the report is served, and send a copy to the DWC Medical Director, under 8 CCR §35.5(d). The Medical Director issues a panel in another specialty only on a party's request with that notice attached or on a judge's order.
What does the penalty-of-perjury declaration in a QME report cover? Under Labor Code §4628(j), the physician declares that the report is true and correct to the best of their knowledge, and that information received from others is accurately described. The declaration must be dated, signed, and state the county where it was signed. Omitting records from the review of records section makes the declaration inaccurate.