ADJ11433178 — California WCAB decision

What the panel ordered

The Appeals Board affirmed the Amended Findings, Award and Order of May 27, 2020, denying defendant's petition for reconsideration.

Defendant filed a timely, unverified petition for reconsideration of the WCJ's decision, which was treated as a petition for reconsideration to review the WCJ's finding of California jurisdiction and evidentiary rulings under the removal standard.

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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.

AOE/COEApplicant prevailedleft hand · right upper extremity

The WCJ found that applicant sustained injury to left hand (index finger laceration) and right upper extremity (complex regional pain syndrome) arising out of and in the course of employment, supported by medical reports and testimony. The Appeals Board affirmed this finding.

From the decision · page 1In the Amended Findings, Award and Order of May 27, 2020, the Workers' Compensation Judge (WCJ) found that trial exhibits C, D, E, F, H, I, J, K, L, and M must be stricken due to defendant's failure to timely serve, disclose, and identify them with specificity at the Mandatory Settlement Conference (MSC); the WCJ also struck all testimony reviewing and/or commenting on the stricken exhibits. The WCJ also found that on May 6, 2016, applicant, while employed by American Marine Corporation at Terminal Island, California, sustained industrial injury to his left hand in the form of index finger laceration, and to his right upper extremity in the form of carpal tunnel syndrome, resulting in chronic regional pain syndrome. In addition, the WCJ found that defendant failed to establish that applicant was employed as a "seaman" under the Jones Act, and that defendant failed to establish that the California WCAB does not have subject matter jurisdiction over applicant's injury claim herein. Pursuant to these findings, the WCJ awarded applicant further medical treatment and temporary disability indemnity beginning May 10, 2016 and continuing, subject to the 104-week indemnity cap under Labor Code section 4656(c)(2), and less credit to defendant for any benefits paid, including maintenance benefits paid pursuant to the Federal Maritime or Jones Act.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant's credible testimony that he did not meet the Jones Act seaman definition due to insufficient time spent in service of a vessel.

Favours Applicant prevailed

This credibility finding led to the conclusion that California WCAB has subject matter jurisdiction over the claim.

From the decision · page 21Applicant testified that on occasion, with the tide out, no punt or floating platform was required to perform his pier repair or wrapping assignments. The employer witness acknowledged that that scenario was possible but that the employer wouldn't normally send a work vessel to a location when the tide was that far out. Applicant's testimony was found to be more persuasive and credible on this issue.

Defendant failed to timely serve and disclose key exhibits, leading to their exclusion and striking of related testimony.

Favours Applicant prevailed

Exclusion of evidence weakened defendant's case and supported affirmance of WCJ's decision.

From the decision · page 1In the Amended Findings, Award and Order of May 27, 2020, the Workers' Compensation Judge (WCJ) found that trial exhibits C, D, E, F, H, I, J, K, L, and M must be stricken due to defendant's failure to timely serve, disclose, and identify them with specificity at the Mandatory Settlement Conference (MSC); the WCJ also struck all testimony reviewing and/or commenting on the stricken exhibits. The WCJ also found that on May 6, 2016, applicant, while employed by American Marine Corporation at Terminal Island, California, sustained industrial injury to his left hand in the form of index finger laceration, and to his right upper extremity in the form of carpal tunnel syndrome, resulting in chronic regional pain syndrome. In addition, the WCJ found that defendant failed to establish that applicant was employed as a "seaman" under the Jones Act, and that defendant failed to establish that the California WCAB does not have subject matter jurisdiction over applicant's injury claim herein. Pursuant to these findings, the WCJ awarded applicant further medical treatment and temporary disability indemnity beginning May 10, 2016 and continuing, subject to the 104-week indemnity cap under Labor Code section 4656(c)(2), and less credit to defendant for any benefits paid, including maintenance benefits paid pursuant to the Federal Maritime or Jones Act.

Medical reports from Drs. Delman, Mehta, Prager, and Groomer supported injury to left hand and right upper extremity and need for treatment.

Favours Applicant prevailed

Supported compensability and entitlement to benefits.

From the decision · page 23Based upon defendants' admission and upon applicant's testimony and the medical reporting of Allan Delman, M.D. (Applicant Exhibits 20-21), Parag Mehta, M.D. (Applicant Exhibits 15-16), Joshua Prager, M.D. (Applicant Exhibits 17-18), and Jason Groomer, D.O. (Applicant Exhibit 14), it is found that sustained injury to his left hand in the form of left index finger laceration, and to his right upper extremity in the form of complex regional pain syndrome (CPRS), arising out of and occurring in the course of employment.

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.

PTPRelied upon

Reported injury to left hand and right upper extremity, requested right carpal tunnel surgery, noted unusual post-surgery symptoms and transfer of care to neurologist for chronic regional pain syndrome.

Medical reports supported injury findings and treatment needs.

From the decision · page 23Based upon defendants' admission and upon applicant's testimony and the medical reporting of Allan Delman, M.D. (Applicant Exhibits 20-21), Parag Mehta, M.D. (Applicant Exhibits 15-16), Joshua Prager, M.D. (Applicant Exhibits 17-18), and Jason Groomer, D.O. (Applicant Exhibit 14), it is found that sustained injury to his left hand in the form of left index finger laceration, and to his right upper extremity in the form of complex regional pain syndrome (CPRS), arising out of and occurring in the course of employment.

secondary_treaterRelied upon · neurology

Diagnosed chronic regional pain syndrome and provided pain management treatment.

Medical reports supported injury findings and treatment needs.

From the decision · page 23Based upon defendants' admission and upon applicant's testimony and the medical reporting of Allan Delman, M.D. (Applicant Exhibits 20-21), Parag Mehta, M.D. (Applicant Exhibits 15-16), Joshua Prager, M.D. (Applicant Exhibits 17-18), and Jason Groomer, D.O. (Applicant Exhibit 14), it is found that sustained injury to his left hand in the form of left index finger laceration, and to his right upper extremity in the form of complex regional pain syndrome (CPRS), arising out of and occurring in the course of employment.

secondary_treaterRelied upon

Provided medical reporting supporting injury to left hand and right upper extremity.

Medical reports supported injury findings and treatment needs.

From the decision · page 23Based upon defendants' admission and upon applicant's testimony and the medical reporting of Allan Delman, M.D. (Applicant Exhibits 20-21), Parag Mehta, M.D. (Applicant Exhibits 15-16), Joshua Prager, M.D. (Applicant Exhibits 17-18), and Jason Groomer, D.O. (Applicant Exhibit 14), it is found that sustained injury to his left hand in the form of left index finger laceration, and to his right upper extremity in the form of complex regional pain syndrome (CPRS), arising out of and occurring in the course of employment.

secondary_treaterRelied upon

Provided medical reporting supporting injury to left hand and right upper extremity.

Medical reports supported injury findings and treatment needs.

From the decision · page 23Based upon defendants' admission and upon applicant's testimony and the medical reporting of Allan Delman, M.D. (Applicant Exhibits 20-21), Parag Mehta, M.D. (Applicant Exhibits 15-16), Joshua Prager, M.D. (Applicant Exhibits 17-18), and Jason Groomer, D.O. (Applicant Exhibit 14), it is found that sustained injury to his left hand in the form of left index finger laceration, and to his right upper extremity in the form of complex regional pain syndrome (CPRS), arising out of and occurring in the course of employment.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5902

Labor Code section 5902 verification requirement for petitions for reconsideration

Petition for reconsideration was dismissed for lack of verification unless cured; defendant's petition was unverified and dismissed.

From the decision · page 7Finally, it should be noted that even if we had not affirmed the WCJ's decision on the merits, we would have dismissed defendant's petition for reconsideration for lack of verification. Labor Code section 5902 requires that a petition for reconsideration be verified. (Lab. Code, § 5902; see also Cal. Code Regs., tit. 8, former § 10450(e), now § 10510(d) (eff. Jan. 1, 2020).) In Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision), it was held that where a petition for reconsideration is not verified as required by section 5902, the petition may be dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of verification and the record establishes that the respondents are not prejudiced by the lack of verification.

Jones Act

Jones Act concurrent jurisdiction doctrine

Concurrent jurisdiction applies where there is local interest; defendant failed to prove exclusive federal jurisdiction.

From the decision · page 3In addition, we note that on the first day of trial on May 6, 2019, defendant asserted that "the WCAB does not have jurisdiction over applicant's claim due to exclusive jurisdiction under the Jones Act and Maritime law." (Minutes of Hearing, 3:10-12.) This assertion was sufficient to raise the question of whether there is concurrent federal and state jurisdiction, even if applicant was a "seaman" under the Jones Act. (See Bontempo v. Workers' Comp. Appeals Bd. (2009) 173 Cal.App.4th 689, 704 (74 Cal.Comp.Cases 419): [Raising the issues of permanent disability (Lab. Code, § 4660) and apportionment (Lab. Code, § 4663, 4664) was sufficient to raise the 15% increase in permanent disability under Labor Code section 4658(d).].)

Labor Code section 4656(c)(2)

Labor Code section 4656(c)(2) 104-week indemnity cap

Temporary disability indemnity awarded subject to 104-week cap.

From the decision · page 1In the Amended Findings, Award and Order of May 27, 2020, the Workers' Compensation Judge (WCJ) found that trial exhibits C, D, E, F, H, I, J, K, L, and M must be stricken due to defendant's failure to timely serve, disclose, and identify them with specificity at the Mandatory Settlement Conference (MSC); the WCJ also struck all testimony reviewing and/or commenting on the stricken exhibits. The WCJ also found that on May 6, 2016, applicant, while employed by American Marine Corporation at Terminal Island, California, sustained industrial injury to his left hand in the form of index finger laceration, and to his right upper extremity in the form of carpal tunnel syndrome, resulting in chronic regional pain syndrome. In addition, the WCJ found that defendant failed to establish that applicant was employed as a "seaman" under the Jones Act, and that defendant failed to establish that the California WCAB does not have subject matter jurisdiction over applicant's injury claim herein. Pursuant to these findings, the WCJ awarded applicant further medical treatment and temporary disability indemnity beginning May 10, 2016 and continuing, subject to the 104-week indemnity cap under Labor Code section 4656(c)(2), and less credit to defendant for any benefits paid, including maintenance benefits paid pursuant to the Federal Maritime or Jones Act.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

WCJ's credibility determination of applicant's testimony over employer witness

From the decision · page 3In reference to the WCJ's evidentiary rulings and his finding of California subject matter jurisdiction, we have considered the allegations of defendant's Petition for Reconsideration, the contents of the WCJ's Report and Recommendation with respect thereto, and the contents of the WCJ's Opinion on Decision. Based on our review of the record, and for the reasons stated below and in the WCJ's Report and Opinion, both of which we adopt and incorporate, we will affirm the Amended Findings, Award and Order of May 27, 2020. In affirming the WCJ's decision in its entirety, we have given the WCJ's credibility determination(s) great weight because the WCJ had the opportunity to observe the demeanor of the witness(es). (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500, 504-505].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)

Documentary evidencefavours Applicant prevailed

Exclusion of employer's dive logs and other exhibits due to untimely service and disclosure

From the decision · page 1In the Amended Findings, Award and Order of May 27, 2020, the Workers' Compensation Judge (WCJ) found that trial exhibits C, D, E, F, H, I, J, K, L, and M must be stricken due to defendant's failure to timely serve, disclose, and identify them with specificity at the Mandatory Settlement Conference (MSC); the WCJ also struck all testimony reviewing and/or commenting on the stricken exhibits. The WCJ also found that on May 6, 2016, applicant, while employed by American Marine Corporation at Terminal Island, California, sustained industrial injury to his left hand in the form of index finger laceration, and to his right upper extremity in the form of carpal tunnel syndrome, resulting in chronic regional pain syndrome. In addition, the WCJ found that defendant failed to establish that applicant was employed as a "seaman" under the Jones Act, and that defendant failed to establish that the California WCAB does not have subject matter jurisdiction over applicant's injury claim herein. Pursuant to these findings, the WCJ awarded applicant further medical treatment and temporary disability indemnity beginning May 10, 2016 and continuing, subject to the 104-week indemnity cap under Labor Code section 4656(c)(2), and less credit to defendant for any benefits paid, including maintenance benefits paid pursuant to the Federal Maritime or Jones Act.

ADJ11433178 · August 3, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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