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.
The petition for reconsideration seeking development of the record was denied because the issue was not raised at trial, no new evidence was presented, and the existing evidence was substantial.
From the decision · page 6The Petitioner did not raise the issue of a need to develop the record. The Minutes of Hearing dated 11/24/2021 set forth the issues to be addressed at trial. The Petitioner specifically did not request that the trial judge order a development of the record. The issue was never raised. Hence there is no finding of fact, decision or final order from which the Petitioner can seek relief.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not raise the issue of development of the record at trial and did not request it.
Favours Defendant prevailed
No finding of fact, decision or final order on development of the record existed to support reconsideration.
From the decision · page 6The Petitioner did not raise the issue of a need to develop the record. The Minutes of Hearing dated 11/24/2021 set forth the issues to be addressed at trial. The Petitioner specifically did not request that the trial judge order a development of the record. The issue was never raised. Hence there is no finding of fact, decision or final order from which the Petitioner can seek relief.
No new evidence was presented to justify development of the record.
Favours Defendant prevailed
Without new evidence, no basis to develop the record further.
From the decision · page 7Dr. Majcher reviewed all the records and examined the Applicant. He had a full history. His conclusions that she did not have an industrially aggravated condition in the field of internal medicine was clearly substantive evidence. There is no reason established to cause a development of the record because no new evidence has been presented that would justify same.
Applicant was working part time and capable of working with limitations.
Favours Defendant prevailed
Contradicted applicant's vocational rehabilitation report and supported denial of development.
From the decision · page 6banc. The factors of apportionment found by Drs. Rosenberg and Sofen were adopted and conveyed to the DEU. Both parties submitted vocational rehabilitation reports. Applicant's report from Reggie Carruthers dated 9/26/219 (App's Ex. 3) concluded that Applicant could not work. Defendant's report from John Meyers dated 5/25/2021 (Df. Ex. C) indicated that Applicant was in fact working part time and was capable to working with limitations.
Applicant's vocational rehabilitation report was insubstantial due to methodological flaws.
Favours Defendant prevailed
Supported rejection of applicant's VR report and denial of development.
From the decision · page 6The undersigned rejected the vocational rehabilitation report filed by Applicant for the following reasons: (1) the counsellor did not review the QME report of Dr. Kaplan upon whom the WCJ relied for assessment of impairment, (2) the counsellor did not consider or even obtain a history that Applicant was employed, (3) the counsellor gave no consideration to or took a history of the Applicant's present income sources, and (4) the counsellor failed to consider if Applicant, who is retired at age 66, has any motivation whatsoever to return to work.
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.
Declared applicant permanent and stationary with psychological injury from work and as a compensable consequence of orthopedic complaints, with a GAF of 55 (23% WPI).
Report was thorough and substantial; no evidence of change in condition or request for re-examination to justify further development.
From the decision · page 7Dr. Kaplan's report of 1/17/2014 (Court's Ex. W) is a thorough psychological report based upon an examination and a review of all pertinent records. She declared Applicant to be permanent and stationary. There is no allegation or evidence of a change in Applicant's condition. There was no request for re-examination.
Concluded no industrially aggravated condition in internal medicine; his conclusions were substantive evidence.
No new evidence justified further development; conclusions were substantive evidence.
From the decision · page 7Dr. Majcher reviewed all the records and examined the Applicant. He had a full history. His conclusions that she did not have an industrially aggravated condition in the field of internal medicine was clearly substantive evidence. There is no reason established to cause a development of the record because no new evidence has been presented that would justify same.
Found industrial injury to skin from prolonged sun exposure with 5% WPI impairment rating.
From the decision · page 5Dr. Howard Sofen acted as PQME in dermatology. He found an industrial injury to the skin resulting from prolonged sun exposure and issued an impairment rating of 5% wpi that was transmitted to the DEU for rating. There were factors of apportionment. The factors of apportionment found by Dr. Kaplan were rejected by the undersigned as unsupported per Escobedo v. Marshalls (2005) 70 CCC 604, en
Found applicant permanent and stationary with factors of impairment transmitted to DEU for rating.
From the decision · page 5Dr. Richard Rosenberg acted as QME in orthopedics who wrote two reports dated 3/1/2014 and 2/8/2017 (Court's Exs. Z1 & Z2). Applicant was permanent and stationary with factors of impairment that were transmitted to the DEU for rating.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Lab. Code sec. 5900(a)
Petition for Reconsideration under Cal. Lab. Code sec. 5900(a)
Petition was limited to development of the record; no other error alleged.
From the decision · page 6"Any person aggrieved directly or indirectly by any final order, decision, or award made and filed by the appeals board or a workers' compensation judge under any provision contained in this division, may petition the appeals board for reconsideration in respect to any matter determined or covered by the final order, decision or award,..." (emphasis added).
Cal. Lab. Code secs. 5701 and 5906
Jurisdiction to order development of the record under Cal. Lab. Code secs. 5701 and 5906
No insufficient evidence to base a decision; no development ordered.
From the decision · page 7Under Cal. Lab. Code sec. 5701 and 5906 the WCJ and the Appeals Board have the jurisdiction to order development of the record if there is insufficient evidence upon which to base a decision. McDuffie v. LA Metro (2002) 67 CCC 138.
Substantial medical evidence standard
Decision based on substantial medical evidence; no development needed.
From the decision · page 8This assertion is essentially incomprehensible. The only legal standard the undersigned employed in deciding this case was that of substantial medical evidence.
What proof carried it
The evidence the panel weighed, by kind.
Applicant was working part time and capable of working with limitations, contrary to applicant's VR report.
From the decision · page 6banc. The factors of apportionment found by Drs. Rosenberg and Sofen were adopted and conveyed to the DEU. Both parties submitted vocational rehabilitation reports. Applicant's report from Reggie Carruthers dated 9/26/219 (App's Ex. 3) concluded that Applicant could not work. Defendant's report from John Meyers dated 5/25/2021 (Df. Ex. C) indicated that Applicant was in fact working part time and was capable to working with limitations.
Applicant's VR report was insubstantial because the counselor did not review Dr. Kaplan's report, was unaware applicant was working, and failed to consider applicant's income and retirement status.
From the decision · page 6The undersigned rejected the vocational rehabilitation report filed by Applicant for the following reasons: (1) the counsellor did not review the QME report of Dr. Kaplan upon whom the WCJ relied for assessment of impairment, (2) the counsellor did not consider or even obtain a history that Applicant was employed, (3) the counsellor gave no consideration to or took a history of the Applicant's present income sources, and (4) the counsellor failed to consider if Applicant, who is retired at age 66, has any motivation whatsoever to return to work.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
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