ADJ14029847 · August 18, 2026

The issue was found moot because the WCJ vacated submission to develop the record further, allowing additional discovery and cross-examination rights to both parties.

From the decision · page 6For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board that the Findings and Orders issued on November 2, 2022, by the WCJ is AFFIRMED, EXCEPT THAT Finding of Fact number 2 is AMENDED as follows: FINDINGS OF FACT *** 2. The issue of whether there was good cause for defendant to request a cross- examination of QME Lazar prior to proceeding to trial on April 21, 2022 is moot.

WCJ vacated submission to develop the record further due to QME report lacking substantial evidence.

Favours Defendant prevailed

Allowed additional discovery and cross-examination rights to defendant, making the issue of good cause for cross-examination moot.

From the decision · page 1We previously granted defendant’s Petition for Reconsideration of the Findings and Orders (F&O) issued on November 2, 2022, by the workers’ compensation administrative law judge (WCJ), in order to further study the factual and legal issues. This is our Opinion and Decision After Reconsideration. The WCJ found, in pertinent part, that applicant was employed on an unspecified date with defendant when he claims to have sustained industrial to his eyes. The WCJ vacated submission of this matter in order to develop the record further because the qualified medical evaluator (QME)’s opinion lacked substantial evidence.

Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process rights including right to cross-examination and fair hearing under California and U.S. Constitutions.

The Appeals Board emphasized the fundamental right to due process and fair hearing including cross-examination rights.

From the decision · page 4irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy. All parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is “... one of ‘the rudiments of fair play’ assured to every litigant...” (Id. at 158.) As stated by the California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572, “[The] commission,... must find facts and declare and enforce rights and liabilities, -- in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law.” (Id. at 577.) A fair hearing includes but is not limited to the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584]; Rucker, supra, at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers’ Comp. Appeals Bd.

Lab. Code, §§ 5701, 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Authority to develop the record when medical evidence is not substantial and to ensure due process.

The Appeals Board agreed with WCJ's order excluding evidence but found the limitation on cross-examination was incorrect and vacated submission to allow further development of the record.

From the decision · page 4(1992) 5 Cal.App.4 703, 710 [57 Cal.Comp.Cases 230].) The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers’ Comp. Appeals Bd. (1998) Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that “[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete. (Citations.)” (McDuffie, supra, 67 Cal.Comp.Cases at 141.) For the reasons discussed in the WCJ’s Report, we agree with the WCJ regarding the orders excluding evidence. However, in his Report, the WCJ concludes that defendant waived its right to challenge the order precluding defendant from cross-examining the QME by not seeking removal

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 596

Removal standard for interlocutory orders requiring showing of significant prejudice or irreparable harm.

The Appeals Board applied the removal standard and found no significant prejudice or irreparable harm to defendant if removal was denied.

From the decision · page 32 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ’s analysis of the merits of the petitioner’s arguments, we are not persuaded that significant prejudice or

Exclusion of exhibits and limitation on cross-examination of QME Lazar by WCJ, later found to be waived challenge and moot issue.

From the decision · page 2On November 2, 2022, this WCJ issued a Findings and Orders disallowing the cross examination of QME Lazar for “the purposes of AOE/COE,” disallowing Defendant Exhibits A, H & I. The court also found that QME Lazar’s reporting lacked substantial medical evidence due to failure to review records and that the record needed to be developed. (11/2/2022 Findings and Orders). On November 16, 2022, defendant filed a Petition for Removal for the court’s denying defendant’s request to cross examine the PQME, disallowing Exhibits A and H and not addressing defendant’s assertion that records were not served on defendant.