ADJ12630887 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; November 15, 2024 Findings and Award rescinded; case remanded to trial level for further proceedings and development of the record.

Applicant sought reconsideration of the November 15, 2024 Findings and Award, which denied injury to certain body parts and closed discovery; the WCJ recommended denial of reconsideration, but the Board granted reconsideration and remanded for further development of the record.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold August 8, 2022.

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 prevailedright arm · circulatory system · diabetes · psyche

Applicant amended claim to include these body parts and sought additional QMEs; the Board found applicant exercised reasonable diligence and that the record lacked substantial evidence, warranting further development.

From the decision · page 9Given applicant's claim amendment, defendant's denial of liability and refusal to authorize the treating physician's request for referral for medical treatment, and applicant's subsequent attempts to engage in the medical-legal dispute resolution process required by section 4062.2 in the manner authorized under AD Rule 31.7, we are persuaded that applicant established good cause for the issuance of additional panels of QMEs in internal medicine and psychology. We therefore disagree with the WCJ's determination that applicant failed to exercise reasonable diligence in attempting to meet her burden of proof.

The facts that decided it

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

Applicant amended claim to include injury to psyche and diabetes and sought additional QMEs in internal medicine and psychology specialties.

Favours Applicant prevailed

This demonstrated reasonable diligence and good cause for further development of the record.

From the decision · page 9Given applicant's claim amendment, defendant's denial of liability and refusal to authorize the treating physician's request for referral for medical treatment, and applicant's subsequent attempts to engage in the medical-legal dispute resolution process required by section 4062.2 in the manner authorized under AD Rule 31.7, we are persuaded that applicant established good cause for the issuance of additional panels of QMEs in internal medicine and psychology. We therefore disagree with the WCJ's determination that applicant failed to exercise reasonable diligence in attempting to meet her burden of proof.

Record lacked substantial medical evidence addressing injury to the claimed body parts, and applicant did not testify at trial.

Favours Applicant prevailed

Without substantial evidence and testimony, the WCJ could not properly decide the disputed injuries.

From the decision · page 6The WCJ's F&A concluded that "applicant did not sustain her burden of proving injury to her right arm, circulatory system, diabetes and psyche," and that "the record does not require further development." (Findings of Fact Nos. 2 & 8.) The WCJ explained that "without applicant's testimony, a determination as to the disputed parts of body cannot be made, as applicant's credibility could not be ascertained by the court per Garza [v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]." (Opinion on Decision, at p. 2.) The WCJ's Report further observes that the reporting in evidence addressing the body parts alleged by applicant did not constitute substantial medical evidence because the evaluating physician failed to "explain the rationale for his conclusions and does not definitively find injury to the additional parts of body currently being asserted." (Report, at p. 4.) Because applicant offered no substantial medical reporting to establish injury to the claimed body parts, and because applicant "did not testify at trial in regard to the disputed parts of body alleged and how she believes she sustained injury to her right arm, circulatory system, diabetes and psyche," the WCJ concluded that applicant did not meet the burden of establishing injury to the claimed body parts.

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.

QMEPartially credited · orthopedic medicine

From the decision · page 2The parties have selected Qualified Medical Evaluator (QME) Alexander Latteri, M.D., in orthopedic medicine. Applicant has further selected treating and evaluating physicians Babak Samimi, M.D., Gary Baker, M.D., and Koruon Daldalyan, M.D.

PTPPartially credited

Determined applicant was maximally medically improved on November 6, 2020; no further treatment sought in other specialties.

From the decision · page 5Defendant's Answer observes that applicant was initially determined to be maximally medically improved on November 6, 2020 by orthopedic treating physician Dr. Samimi. Thereafter, applicant failed to seek additional treatment within defendant's Medical Provider Network in other specialties and further failed to request a QME panel in other specialties prior to the close of discovery. (Answer, at p. 3:9.) Defendant asserts that development of the record is unnecessary because applicant did not testify at trial. (Id. at p. 4:1.)

PTPPartially credited

Requested internal medicine evaluation for diabetes and hyperglycemia; defendant denied authorization.

From the decision · page 8On April 14, 2024, Dr. Baker issued an RFA seeking an internal medicine evaluation, noting applicant's Type II diabetes and evidence of hyperglycemia. (Ex. 102-L, RFAs from Gary Baker, M.D., various dates.)

secondary_treaterRejected

Report discounted as conclusory and not substantial evidence for additional body parts injury.

From the decision · page 12Moreover, the court in McKernan was clear that "the Board may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based, and even that this principle may be appropriately applied in favor of the employee." (McKernan, supra, at pp. 937-938.) Here, the WCJ has concluded that there is no competent evidence in the record to address the issue framed by the parties. The WCJ has discounted the reporting of secondary treating physician Dr. Daldalyan as conclusory and not substantial evidence and has identified no other evidence in the record responsive to the issue of the claimed additional body parts. (Opinion on Decision, at p. 3.) As such, "neither side has presented substantial evidence on which a decision could be based." (McKernan, supra, at p. 938.) In the absence of substantial evidence responsive to the issues submitted for decision, development of the record is both reasonable and necessary.

The rules the panel named

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

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

Employee bears burden of proving injury arising out of and in the course of employment by a preponderance of the evidence.

Applied to assess burden of proof for injury to disputed body parts.

From the decision · page 7We agree with the WCJ that the employee bears the burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298 [80 Cal.Comp.Cases 489]; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases 660]; Lab. Code, § 3202.5, 3600(a).) In addition, the employee has the burden of proving, by a preponderance of the evidence, both the overall level of permanent disability and that at least some of this permanent disability was industrially-caused. (Lab. Code, § 3202.5, 5705; see Peter Kiewit Sons v. Industrial Acc. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155, 158- 159 [16 Cal.Comp.Cases 264].)

McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408

Employee must prove overall level of permanent disability and industrial causation by preponderance of evidence.

Applied to assess burden of proof for permanent disability and causation.

From the decision · page 7We agree with the WCJ that the employee bears the burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298 [80 Cal.Comp.Cases 489]; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases 660]; Lab. Code, § 3202.5, 3600(a).) In addition, the employee has the burden of proving, by a preponderance of the evidence, both the overall level of permanent disability and that at least some of this permanent disability was industrially-caused. (Lab. Code, § 3202.5, 5705; see Peter Kiewit Sons v. Industrial Acc. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155, 158- 159 [16 Cal.Comp.Cases 264].)

Labor Code, 3202.5, 3600(a)

Labor Code sections 3202.5, 3600(a) impose burden on employee to prove industrial causation.

Legal basis for burden of proof on injury and disability.

From the decision · page 7We agree with the WCJ that the employee bears the burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298 [80 Cal.Comp.Cases 489]; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases 660]; Lab. Code, § 3202.5, 3600(a).) In addition, the employee has the burden of proving, by a preponderance of the evidence, both the overall level of permanent disability and that at least some of this permanent disability was industrially-caused. (Lab. Code, § 3202.5, 5705; see Peter Kiewit Sons v. Industrial Acc. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155, 158- 159 [16 Cal.Comp.Cases 264].)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's decision not to testify at trial

From the decision · page 16Compounding the lack of medical evidence in this matter is applicant's decision not to testify. The record does not reflect any compelling rationale for applicant's decision not to offer narrative support for her claimed injuries. The WCJ's Report observes that the WCJ would have considered the testimony of the applicant in the assessment of the nature and extent of the claimed

Medical recordsfavours Defendant prevailed

Lack of substantial medical evidence addressing claimed body parts

From the decision · page 6The WCJ's F&A concluded that "applicant did not sustain her burden of proving injury to her right arm, circulatory system, diabetes and psyche," and that "the record does not require further development." (Findings of Fact Nos. 2 & 8.) The WCJ explained that "without applicant's testimony, a determination as to the disputed parts of body cannot be made, as applicant's credibility could not be ascertained by the court per Garza [v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]." (Opinion on Decision, at p. 2.) The WCJ's Report further observes that the reporting in evidence addressing the body parts alleged by applicant did not constitute substantial medical evidence because the evaluating physician failed to "explain the rationale for his conclusions and does not definitively find injury to the additional parts of body currently being asserted." (Report, at p. 4.) Because applicant offered no substantial medical reporting to establish injury to the claimed body parts, and because applicant "did not testify at trial in regard to the disputed parts of body alleged and how she believes she sustained injury to her right arm, circulatory system, diabetes and psyche," the WCJ concluded that applicant did not meet the burden of establishing injury to the claimed body parts.

treatment coursefavours Applicant prevailed

Applicant's reasonable diligence in seeking medical-legal evaluations and additional QME panels

From the decision · page 9Given applicant's claim amendment, defendant's denial of liability and refusal to authorize the treating physician's request for referral for medical treatment, and applicant's subsequent attempts to engage in the medical-legal dispute resolution process required by section 4062.2 in the manner authorized under AD Rule 31.7, we are persuaded that applicant established good cause for the issuance of additional panels of QMEs in internal medicine and psychology. We therefore disagree with the WCJ's determination that applicant failed to exercise reasonable diligence in attempting to meet her burden of proof.

ADJ12630887 · February 3, 2025