What the panel ordered
Findings of Fact and Order of January 13, 2026 rescinded; new decision defers issue of industrial injury to the neck and temporary disability caused by neck injury; affirms no temporary disability from asthma or hearing injury
Petition for reconsideration granted, WCJ decision rescinded, case remanded for further development and appointment of independent medical evaluator under Labor Code section 5701
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The record was found insufficient and the case was remanded for further development including appointment of an independent medical evaluator to determine industrial injury to the neck.
From the decision · page 5The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that mandate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the trial level for further development of the record and decision on the issue of industrial injury to the neck. We believe that this case would be best served by the appointment of an independent medical evaluator pursuant to Labor Code section 5701, and thus the WCJ should issue an order for the appointment of a Labor Code section 5701 doctor upon return of this case. Since any industrial neck injury may
Applicant did not present medical evidence to prove temporary disability caused by asthma or hearing injury, so the finding of no temporary disability was affirmed.
From the decision · page 5We affirm the finding that applicant's asthma and hearing injury did not cause any periods of temporary disability. Applicant had the burden of proof on this issue (Cal. Lab. Code, § 3202.5, 5705) and did not present any medical evidence of temporary disability caused by asthma or lack of hearing.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not present medical evidence of temporary disability caused by asthma or hearing injury.
Favours Defendant prevailed
This lack of evidence led to affirming no temporary disability from asthma or hearing injury.
From the decision · page 5We affirm the finding that applicant's asthma and hearing injury did not cause any periods of temporary disability. Applicant had the burden of proof on this issue (Cal. Lab. Code, § 3202.5, 5705) and did not present any medical evidence of temporary disability caused by asthma or lack of hearing.
Medical evidence on industrial injury to the neck was incomplete and insufficient.
Favours Applicant prevailed
This insufficiency led to remanding the case for further development and appointment of an independent medical evaluator.
From the decision · page 5The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that mandate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the trial level for further development of the record and decision on the issue of industrial injury to the neck. We believe that this case would be best served by the appointment of an independent medical evaluator pursuant to Labor Code section 5701, and thus the WCJ should issue an order for the appointment of a Labor Code section 5701 doctor upon return of this case. Since any industrial neck injury may
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
No objective medical evidence to support industrial causation of neck pain; no documentation of modified work or lost time due to neck injury; opinion found incomplete and insufficient to constitute substantial evidence.
The opinion was based on lack of objective evidence and no lost time, but the Board found this insufficient and ordered further evaluation.
From the decision · page 4Turning to the merits, applicant was evaluated for his claim of neck injury by qualified medical evaluator orthopedist Jeffrey O. McGillicuddy, M.D. In his initial report of July 19, 2023, Dr. McGillicuddy wrote:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 5701
Appointment of independent medical evaluator for further development of industrial injury issue.
From the decision · page 5The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that mandate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the trial level for further development of the record and decision on the issue of industrial injury to the neck. We believe that this case would be best served by the appointment of an independent medical evaluator pursuant to Labor Code section 5701, and thus the WCJ should issue an order for the appointment of a Labor Code section 5701 doctor upon return of this case. Since any industrial neck injury may
What proof carried it
The evidence the panel weighed, by kind.
Applicant's history of injury was found credible; lack of objective medical evidence and lost time was insufficient to disprove industrial injury to the neck.
From the decision · page 5We believe that Dr. McGillicuddy's reporting in this matter does not constitute substantial medical evidence. Although Dr. McGillicuddy appears to base his decision on the lack of "objective medical evidence" of causation and the fact that no time was taken off work because of applicant's cervical complaints, neither is necessary for a finding of industrial injury. Unless the injured worker's history of injury is found not credible for whatever reason, the relevant inquiry should be whether such a history caused disability or a need for medical treatment. Although Dr. McGillicuddy did opine that the way applicant carried plywood was not consistent with applicant's pathology or symptoms, a more detailed history is necessary to determine if any other work functions contributed to disability or the need for medical treatment in the cervical spine. The applicant should give the reporting physician a complete history or his work duties and movements. In any case, the reporting physician should reevaluate the issue of whether the way applicant carried plywood may have contributed to a cervical injury.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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