ADJ15289923 · December 13, 2024

The Appeals Board found that further development of the record was required due to insufficient medical evidence and extraordinary circumstances related to a defective Declaration of Readiness to Proceed and failure to object, warranting rescission of the prior Findings and Award.

From the decision · page 8Accordingly, we believe that the best course of action here is to rescind the F&A and substitute a new order finding that development of the record is required with regard to applicant's neurological and ophthalmologic complaints, with other issues deferred pending such development. Upon completion of development of the record, the WCJ will be in a position to reconsider those other issues with the benefit of a complete and adequate record, and therefore to issue a decision supported by substantial evidence that accords due process to both parties. We trust that the parties, having already wasted substantial time and judicial resources through inattention and poor communication, will work together diligently and collaboratively from this point on to avoid further delay or confusion.

Defendant filed a defective Declaration of Readiness to Proceed that purported to attach a non-existent Compromise and Release, obscuring its true intentions.

Favours Applicant prevailed

This defective filing contributed to applicant's attorney's failure to object and justified further development of the record.

From the decision · page 7That DOR both its filing and applicant's attorney's failure to object is the most vexing element in this case. The DOR itself is obviously and clearly defective on its face, because it purports to attach a Compromise and Release which was not only not attached, but apparently never existed.2 The record does not appear to contain any explanation for how or why defendant proceeded in such a manner. Confronted with such a filing, it is somewhat understandable that applicant's attorney would not have immediately perceived that defendant was attempting to set the case for trial based upon the existing medical record. At a bare minimum, defendant's conduct shows a lack of care and diligence on its part in the filing of the DOR, especially considering that the relevant section of the DOR is stated under penalty of perjury. At worst, it could show intent to obfuscate its true aim. However, because we have no evidence to suggest that defendant did intend to engage in such bad-faith behavior, we will assume for purposes of decision that defendant's actions were motivated not by malice, but by inattention.

Applicant's attorney exercised due diligence in seeking PQME evaluations as recommended by Dr. Mauro, including efforts as recent as May 2023.

Favours Applicant prevailed

Supports the finding that applicant did not fail to exercise due diligence, warranting further development of the record.

From the decision · page 6Here, we disagree with the WCJ that applicant failed to exercise due diligence to complete necessary discovery. The record shows that applicant repeatedly sought PQME evaluations pursuant to Dr. Mauro's recommendation, including as recently as May 2023, when a WCJ took the matter off calendar for the purpose of obtaining further medical evidence. According to applicant's Petition, rather than obtaining PQME evaluations immediately, defendant instead wanted to schedule consulting examinations with a neurologist and ophthalmologist first, which it did, obtaining reports in October and November of 2023. Also according to applicant's Petition, defendant served applicant's attorney with the reports on January 2, 2024, only a few days before the January 5, 2024 declaration of readiness. (Applicant's Petition, at pp. 7, 9.)

Conducted examination and prepared report but did not opine on causation or degree of disability.

From the decision · page 3According to applicant's Petition verified under penalty of perjury and uncontradicted by defendant rather than agreeing to the PQME evaluations in question, defendant instead scheduled applicant to be seen by secondary consults in neurology and ophthalmology. These doctors neurologist Bijan Zardouz, M.D. and ophthalmologist Wayne Martin, M.D. conducted examinations and prepared reports in October and November of 2023. (See D. Exs. I, J.) Neither doctor opined on causation or degree of disability. (See. D. Ex. I, at p. 4; D. Ex. J, at p. 2.)

Found applicant's subjective complaints in excess of objective findings.

From the decision · page 2The parties appear to agree that applicant injured herself by falling and hitting her head while on the employer's premises. She received treatment immediately after the injury, before ultimately continuing treatment with Keolanui Chun, M.D., from October 2021. 1 Broadly summarized, Dr. Chun found applicant's subjective complaints in excess of the objective findings. (See D. Exs. AH.)

Found applicant's complaints credible and recommended neurological and ophthalmological evaluations; disagreed with Dr. Chun on MMI date.

From the decision · page 2Applicant also underwent a Panel Qualified Medical Evaluation (PQME) with Michael Mauro, M.D., on April 19, 2022, an orthopedic specialist. In contrast to Dr. Chun, Dr. Mauro largely found applicant's complaints to be credible. (See J. Exs. AA-CC.) The doctors also disagree as to when applicant reached maximum medical improvement ("MMI"), among other matters.

Conducted examination and prepared report but did not opine on causation or degree of disability.

From the decision · page 3According to applicant's Petition verified under penalty of perjury and uncontradicted by defendant rather than agreeing to the PQME evaluations in question, defendant instead scheduled applicant to be seen by secondary consults in neurology and ophthalmology. These doctors neurologist Bijan Zardouz, M.D. and ophthalmologist Wayne Martin, M.D. conducted examinations and prepared reports in October and November of 2023. (See D. Exs. I, J.) Neither doctor opined on causation or degree of disability. (See. D. Ex. I, at p. 4; D. Ex. J, at p. 2.)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

Duty to further develop the record where there is insufficient evidence on an issue.

The Appeals Board found insufficient evidence on neurological and ophthalmologic complaints and ordered further development.

From the decision · page 6The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924].) However, if a party fails to meet its burden of proof by obtaining and introducing competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed. (Lab. Code, § 5502; San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Telles Transport Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159 [66 Cal.Comp.Cases 1290].) The duty to develop the record must be balanced with the parties' obligation to exercise due diligence to complete necessary discovery. (San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan), supra.)

Labor Code section 4061(i)

Labor Code section 4061(i) prohibits filing a Declaration of Readiness to Proceed when PD is disputed and no PQME or AME report exists.

The defective DOR filed by defendant arguably violated this statute, supporting the decision to rescind the F&A and order further development.

From the decision · page 72 It also arguably violates Labor Code section 4061, subdivision (i)'s prohibition on filing a DOR where PD is disputed and there is no PQME or AME Report although technically speaking there is a PQME report in this case, that report specifically notes that its preparer was unable to properly evaluate applicant's neurological and ophthalmologic complaints.

WCAB Rule 10744(d)

WCAB Rule 10744(d) deems waiver of objections to proceeding without objection to DOR absent extraordinary circumstances.

The Appeals Board found extraordinary circumstances excusing waiver due to defective DOR and failure to object, justifying further development of the record.

From the decision · page 8The upshot is that we are left with a rather novel situation to adjudicate a facially defective DOR with an unclear objective, paired with a corresponding failure by the opposing party to either timely object or clarify the other party's intentions. Although we understand the WCJ's frustration at applicant's failure to object and the corresponding conclusion that this failure waived any objection pursuant to WCAB Rule 10744, subdivision (d), on balance we believe that these are precisely the sort of "extraordinary circumstances" that the Rule contemplates, and carves out an exception for. It is not clear to us why applicant should bear the burden of what are evidently mutual mistakes and inattention in conjunction with the filing of the DOR. To endorse the conclusion that applicant waived the right to obtain PQME reports by failure to object would in effect reward defendant for filing a defective DOR that obscured its true intentions.

Applicant's attorney's due diligence in seeking PQME evaluations and defendant's defective DOR filing and failure to clarify intentions.

From the decision · page 6Here, we disagree with the WCJ that applicant failed to exercise due diligence to complete necessary discovery. The record shows that applicant repeatedly sought PQME evaluations pursuant to Dr. Mauro's recommendation, including as recently as May 2023, when a WCJ took the matter off calendar for the purpose of obtaining further medical evidence. According to applicant's Petition, rather than obtaining PQME evaluations immediately, defendant instead wanted to schedule consulting examinations with a neurologist and ophthalmologist first, which it did, obtaining reports in October and November of 2023. Also according to applicant's Petition, defendant served applicant's attorney with the reports on January 2, 2024, only a few days before the January 5, 2024 declaration of readiness. (Applicant's Petition, at pp. 7, 9.)