WASTE MANAGEMENT OF MORENO VALLEY MRF; GALLAGHER BASSETT SERVICES, INC. DAVID MARTINEZ WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIADAVID MARTINEZ, Applicant,vs.WASTE MANAGEMENT OF MORENO VALLEY MRF; GALLAGHERBASSETT SERVICES, INC., Defendants.Case No. ADJ7461801(Marina del Rey District Office)OPINION AND ORDER DENYING PETITION FOR REMOVAL Defendant has filed a timely, verified Petition for Removal, requesting that the Appeals Board reverse the Order dated July 3, 2012, which took the case off calendar and stated: “Record to be developed.” Defendant contends that applicant did not exercise due diligence in obtaining psychiatric evaluation prior to the mandatory settlement conference (MSC) on July 3, 2012, and that applicant is not entitled to use the procedures set out in Labor Code section 4062.21 to obtain a psychiatric evaluation because there is not a “medical determination made by the treating physician” as to this issue to which any party could object pursuant to section 4 062(a). Applicant has not filed an answer. Applicant, while employed as a driver on January 21, 2009, sustained an industrial injury to his back. He was examined by Jon Kelly, M.D., as qualified medical evaluator (QME). In his report dated August 18, 2011, the QME noted under “Current Complaints”: “He states that his personality has changed. He is short-tempered and he states that his in-laws have told him that he ‘just needs to cool it.’ He states he is very depressed and does not know what to do” (page 7). He has undergone anterior- posterior fusion at L4-S1, with placement of intervertebral prosthetic cages. The QME found his condition to be permanent and stationary. 1 Unless otherwise specified, all statutory references are to the Labor Code. , After an MSC on November 29, 2011, applicant apparently amended his Application for Adjudication of Claim to allege injury to psyche and other body parts.2 He then commenced the procedure under section 40
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