ADJ7651912 — California WCAB decision

What the panel ordered

The WCAB rescinded the WCJ's Findings of Fact issued June 19, 2023, and returned the matter to the trial level for further development of the record consistent with the decision after reconsideration.

Applicant sought reconsideration of the Findings of Fact issued on June 19, 2023 by a workers' compensation administrative law judge (WCJ). The WCJ found compensable injury to the lumbar spine, paid temporary total disability and permanent disability advances, barred applicant from cross-examination depositions of QME Drs. Chandran and Yousefi by laches, and set permanent and stationary date based on psychiatric QME Dr. Miles. The WCJ deferred the issue of defendant's claimed overpayment. The WCAB granted reconsideration and rescinded the Findings, returning the matter for further proceedings.

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This docket was decided more than once. Shown here is the latest released decision; we also hold September 8, 2023.

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.

Jurisdiction / venueApplicant prevailed

The WCJ's finding of laches barring applicant from cross-examination was not supported by substantial evidence of unreasonable delay or prejudice to defendant, constituting a manifest injustice.

From the decision · page 13

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.

QMERelied upon · psychiatry

Set permanent and stationary date as March 23, 2015; noted obesity as principal environmental trigger for diabetes.

Dr. Miles' psychiatric evaluation set P&S date and noted obesity as diabetes trigger, relevant to causation and disability issues.

From the decision · page 2testimony of QME Drs. Chandran [orthopedic Panel Qualified Medical Evaluator (QME) Rama Chandran, M.D.] and Yousefi [internal QME Keyvan Yousefi, M.D.] by the equitable doctrine of laches; decedent's permanent and stationary (P&S) date was March 23, 2015 based on the reporting of the psychiatric QME Samuel Miles, M.D.; and, the issue of defendant's "claimed over payment of permanent disability...to the parties..." is deferred to the parties, jurisdiction reserved.

QMERelied upon · internal medicine

Found decedent's Type II diabetes non-industrial, but this was disputed by treating internist Dr. Ruby Leynes.

Dispute over industrial causation of diabetes between Dr. Yousefi and Dr. Leynes supports need for further development of medical record.

From the decision · page 10In addition, we note that an April 15, 2015 Review of Records from decedent's treating internist, Maria Ruby Leynes, M.D., addressing the last opinion of the internal QME Dr. Yousefi that decedent's Type II diabetes was wholly non-industrial. (App. Exh. 5, Dr. Leynes Review of Records, April 15, 2015;7 App. Exh. 3 & 28, Panel QME Report in Internal Medicine, Dr. Yousefi, January 14, 2015.) Dr. Leynes disagrees with Dr. Yousefi and states that decedent's industrial injury contributed to her Type II diabetes. (Id.) Moreover, the psychiatric panel QME Samuel I. Miles, M.D., Ph.D., reviewed Dr. Leynes' April 15, 2015 report and opinion and noted that "applicant gained 50 pounds from the time of the accident on November 11, 2010 to March 2015. The principal environmental trigger for type II diabetes is obesity." (App. Exh. 30, Qualified Medical Re-Examination in Psychiatry, December 22, 2015, p. 10.) Dr. Miles requested the he be advised "if Dr. Yousefi's opinion has changed in light of this data." (Ibid.)

QMERelied upon · orthopedic

Did not find decedent permanent and stationary (MMI) and recommended further neurosurgical evaluation.

Dr. Chandran's reports did not find decedent MMI and recommended further evaluation, supporting the need for further record development.

From the decision · page 3As noted, applicant had multiple PQME evaluations with PQME Dr. Chandran with regard to the orthopedic aspects of her claim. Dr. Chandran never found her MMI. In his report of 12/25/14, pertaining to the 12/4/14 re-evaluation, at the top of page 2, it is noted that after the last surgery in January 2014, applicant did not have any relief of her symptoms. He did not find applicant MMI and requested diagnostic testing. Dr. Chandran re-evaluated applicant on 12/21/15 and in his report dated 12/27/15 from that re-evaluation, he once again did not find her MMI and requested additional diagnostic testing. Dr. Chandran authored a supplemental report on 3/31/16 and recommended that applicant undergo a neurosurgical evaluation to evaluate if any spinal surgery would be indicated.

The rules the panel named

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

Labor Code section 5952(d)

A decision of the Workers' Compensation Appeals Board must be supported by substantial evidence.

The WCAB reviewed the record and found the WCJ's decision lacked substantial evidence to bar discovery by laches.

From the decision · page 9A decision of the Workers' Compensation Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-81 [39 Cal.Comp.Cases 310].) The Appeals Board has the discretionary authority to develop the record when the record does not contain 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, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) "`The referee or appeals board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence.'" (Glass v. Workers' Comp. Appeals Bd. (1980) 105 Cal.App.3d 297, 308 citing Raymond Plastering Co. v. Workers' Comp. Appeals Bd. (King) (1967) 252 Cal.App.2d 748 [32 Cal.Comp.Cases 287].)

Labor Code sections 5701, 5906

The Appeals Board has discretionary authority to develop the record when the record lacks substantial evidence or to provide due process.

The WCAB exercised its authority to rescind the Findings and remand for further development of the record.

From the decision · page 9A decision of the Workers' Compensation Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-81 [39 Cal.Comp.Cases 310].) The Appeals Board has the discretionary authority to develop the record when the record does not contain 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, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) "`The referee or appeals board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence.'" (Glass v. Workers' Comp. Appeals Bd. (1980) 105 Cal.App.3d 297, 308 citing Raymond Plastering Co. v. Workers' Comp. Appeals Bd. (King) (1967) 252 Cal.App.2d 748 [32 Cal.Comp.Cases 287].)

Labor Code section 5705

Laches is an affirmative defense with the burden on defendant to prove prejudice from delay.

The WCAB found defendant failed to prove laches and prejudice to bar applicant's discovery.

From the decision · page 11Laches is an affirmative defense to applicant's section 4700 claim, and therefore defendant had the affirmative burden of proof. (Lab. Code, § 5705.) "Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances... (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624 (Miller).)8 The Supreme Court describes the requisite showing for a claim to be barred by laches as follows:

ADJ7651912 · November 27, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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