What the panel ordered
Petition for Reconsideration denied, affirming the WCJ's Findings, Award and Order.
Applicant seeks reconsideration of the Findings, Award and Order issued by the WCJ on May 22, 2023, which denied injury claims for certain body parts and conditions.
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.
Applicant failed to meet burden of proof to show industrial injury on disputed body parts and conditions despite multiple opportunities to develop the medical record; Appeals Board found no good cause to further delay resolution by additional record development.
From the decision · page 1Applicant seeks reconsideration of the Findings, Award and Order (F&A) in case number ADJ7745966, issued by the workers' compensation administrative law judge (WCJ) on May 22, 2023, wherein the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his cervical spine, thoracic spine, lumbar spine, shoulders, and in the form of GERD (gastroesophageal reflux disease); the WCJ also found that applicant did not sustain injury AOE/COE to his lungs or in the form of HIV (human immunodeficiency virus).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant failed to develop the medical record despite multiple opportunities and court orders.
Favours Defendant prevailed
This failure justified denial of further record development and reconsideration, leading to denial of the injury claims.
From the decision · page 3In our October 28, 2022, Opinion and Order we noted that, "In this case, the parties have submitted the case for decision three times and the WCJ has vacated submission three times.... The medical record has not been developed as directed by the WCJ despite ample opportunity to do so." (Opinion and Order, p. 1.) Our review of the entire record (for the period from January 2011, to the present) clearly indicates that applicant was repeatedly given the opportunity to develop the record in support of his injury claims. As noted above, it is not our responsibility to rescue a party by ordering the record to be developed when that party has previously been provided ample opportunity to further develop the record. Thus, applicant has not shown good cause, under the circumstances of this matter, to yet again, delay final resolution of applicant's injury claims through further development of the record. Therefore, we will not disturb the WCJ's F&A.
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.
Provided a report on November 21, 2016, relevant to the HIV injury claim; applicant contended the record should be further developed based on this report.
From the decision · page 1Applicant contends that based on the November 21, 2016 report from internal medicine cardiology qualified medical examiner (QME) Mark Lensky, M.D., the record should be further developed regarding applicant's HIV injury claim.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928
Duty to further develop the record where there is insufficient evidence balanced with parties' obligation to exercise due diligence in discovery.
The Appeals Board found that despite the duty to develop the record, the applicant failed to exercise due diligence and did not develop the medical record after ample opportunity, justifying denial of further development and reconsideration.
From the decision · page 2DISCUSSION The 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
What proof carried it
The evidence the panel weighed, by kind.
Applicant was repeatedly given ample opportunity to develop the medical record but failed to do so despite multiple continuances and orders.
From the decision · page 3In our October 28, 2022, Opinion and Order we noted that, "In this case, the parties have submitted the case for decision three times and the WCJ has vacated submission three times.... The medical record has not been developed as directed by the WCJ despite ample opportunity to do so." (Opinion and Order, p. 1.) Our review of the entire record (for the period from January 2011, to the present) clearly indicates that applicant was repeatedly given the opportunity to develop the record in support of his injury claims. As noted above, it is not our responsibility to rescue a party by ordering the record to be developed when that party has previously been provided ample opportunity to further develop the record. Thus, applicant has not shown good cause, under the circumstances of this matter, to yet again, delay final resolution of applicant's injury claims through further development of the record. Therefore, we will not disturb the WCJ's F&A.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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