ADJ13381754 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; WCJ's Findings of Fact and Order dated July 15, 2025, affirmed except amended to admit defense exhibits K and L; all exhibits C through L admitted and given appropriate weight.

Defendant filed a timely Petition for Reconsideration challenging the admissibility of defense exhibits K and L, which the WCJ initially did not admit. The WCJ issued a Report and Recommendation to grant the Petition and admit the exhibits. The Appeals Board granted reconsideration and issued a Decision After Reconsideration affirming the WCJ's Findings of Fact and Order, amending it to include admission of defense exhibits K and L.

Read the official decision →

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.

Other disputed issueApplicant prevailedrespiratory system · lungs

The WCJ and the Appeals Board found that defense exhibits K and L, which included relevant medical records requested by the PQME, should be admitted despite being procured after the discovery cutoff, as substantial justice and further development of the record required their admission.

From the decision · page 8We observe that the language of Labor Code section 4062.3(a) is fairly expansive with respect to what medical records may be provided to the qualified medical evaluator. Labor Code section 4062.3 provides in relevant part, as follows:

The facts that decided it

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

Defense exhibits K and L consisted of updated medical records including pulmonary treatment and bilateral lung transplant records requested by the PQME.

Favours Applicant prevailed

These exhibits were necessary for further development of the record and to provide an adequate history for substantial evidence findings.

From the decision · page 8Medical Center reflecting pulmonary treatment that included a double lung transplant, and defendant's exhibit L consists of the designation of the records prepared by defendant's attorney. The panel qualified medical evaluator (PQME), Gerald Markovitz, M.D., iterated at depositions and in his most recent report that he would like to review applicant's updated medical records since it had been at least two years since he last saw applicant and he was unaware of applicant's current clinical status. (Joint Exhs. 1, 8, 9.)

The WCJ found the failure to admit defense exhibits K and L was unintentional and a clerical error, and ordered their admission.

Favours Applicant prevailed

This correction allowed the record to be properly developed and evidence to be considered, ensuring substantial justice.

From the decision · page 7In the instant case, Petitioner has stated that, "[i]f the WCJ clarifies that his omission of defense exhibits K and L, (previously marked for identification), from Finding of Fact #6 was unintentional, the result clerical error etc...or by any other means clarifies that those two exhibits should in fact be deemed admitted, then defendants, withdraw this Petition for Reconsideration in its entirety" (Pet for Recon, pg. 10, lines 7-10). This is indeed the case herein. The failure of the undersigned WCJ to admit defense exhibits K and L, (marked for identification), in the Finding of Fact #6 was unintentional; the result of a clerical or scrivener's error. Defense exhibits K and L should be admitted and included in Finding of Fact #6.

The Appeals Board found that excluding defense exhibits K and L would cause significant prejudice and delay in further discovery and record development.

Favours Applicant prevailed

Admission was necessary to avoid prejudice and allow both parties to proceed with discovery and evaluation.

From the decision · page 11Accordingly, for the reasons set forth above, we are persuaded that defendant will sustain significant prejudice if there is a delay in ruling that the records are admissible. By a clear finding that the records are admitted, both parties can proceed with further discovery expeditiously.

The rules the panel named

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

Labor Code section 5708

Labor Code section 5708 allows the Appeals Board to make inquiry in the manner best calculated to ascertain substantial rights and carry out justice, not bound by common law or statutory rules of evidence.

Applied to justify admission of defense exhibits K and L despite discovery cutoff.

From the decision · page 8173, 178 [73 Cal.Comp.Cases 763].) In determining whether to admit evidence, we are governed by the principles of Labor Code section 5708, which states that the Appeals Board "shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Lab. Code, § 5708.) Although the Appeals Board is not bound by it, the Evidence Code defines relevant evidence as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) This definition has been characterized as "manifestly broad." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.)

Labor Code section 4062.3

Labor Code section 4062.3(a) permits any party to provide medical and nonmedical records relevant to medical issues to the qualified medical evaluator.

Applied to support admission of defense exhibits K and L as relevant medical records requested by PQME.

From the decision · page 8We observe that the language of Labor Code section 4062.3(a) is fairly expansive with respect to what medical records may be provided to the qualified medical evaluator. Labor Code section 4062.3 provides in relevant part, as follows:

Labor Code section 5502(d)(3)

Labor Code section 5502(d)(3) discovery cutoff rule prohibits admission of evidence not disclosed before the mandatory settlement conference unless due diligence shows it was unavailable.

Considered but the WCJ and Appeals Board found substantial justice and record development justified admission despite the cutoff.

From the decision · page 9Labor Code section 5502, subdivision (d)(3) provides as follows: If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.

ADJ13381754 · October 13, 2025

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page