What the panel ordered
Petition for reconsideration granted; Findings of Fact and Orders of August 3, 2021, rescinded; matter returned to WCJ for further proceedings and new decision.
Applicant seeks reconsideration of the Findings of Fact and Orders issued by the WCJ on August 3, 2021, which denied injury claims and an additional QME panel in ophthalmology.
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 prevailedeyes · head
The record lacked substantial evidence on injury AOE/COE due to absence of ophthalmological evaluation, and the Appeals Board has a duty to develop the record further when evidence is insufficient.
From the decision · page 3Here, Dr. Regev and Dr. Barkodar both recommended that applicant be examined by an ophthalmologist because the issue of injury to his eyes was beyond their area of expertise. The Appeals Board 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].) The Appeals Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board may direct the augmentation of the medical record where there are material deficiencies in specific medical records or reports. (Id. at 1121-1122.) Again, both doctors stated that they found no evidence of an industrial neurological injury, but as to the issue of an ophthalmological injury, applicant would need to be evaluated by an ophthalmologist. Thus, although the WCJ noted that that applicant testified credibly regarding the light exposure, and that there is corroboration for that exposure (Report, p. 6), there is no medical evidence in the trial record that addresses the issue of injury AOE/COE and the record must be further developed.