ADJ9934566 · October 1, 2026

The WCAB held that the deposition transcript was admissible as it was taken under oath with representation and interpreter, and the WCJ must admit it and weigh its evidentiary value. The WCAB ordered the WCJ to admit the deposition upon return and consider its weight.

From the decision · page 6was entitled to introduce the deposition transcript because the statements made by applicant’s supervisor, who was defendant’s employee at the time of his deposition, were admissible as party admissions even if the deposition transcript contained inadmissible hearsay. The WCJ and the Appeals Board are not bound by common law or statutory rules of evidence, and admission of the supervisor’s deposition transcript did not cause undue surprise or prejudice to defendant because defense counsel participated in the supervisor’s deposition and had an opportunity to cross- examine the supervisor. Here, defendant’s attorney took applicant’s depositions with the assistance of a Spanish language translator, and applicant was represented by an attorney. When applicant explained his medication regime, he was asked if he was able to testify, and he replied that he was. Moreover, his attorney then clarified on the record that applicant was able to testify, and the deposition proceeded. Yet, in her Report, the WCJ discussed applicant’s credibility and whether the applicant’s deposition testimony was substantial evidence. She apparently believed that because she did not have a list of applicant’s medications, she could not “determine whether or not applicant had the capacity to testify.

The WCAB found that the medical reports of Drs. Brautbar and Zlotolow were not substantial evidence and that further medical development was needed to determine if melanoma was industrially related. The WCAB rescinded the WCJ's Findings & Award and remanded for further proceedings including appointment of a regular doctor under Labor Code §5701.

From the decision · page 4In the Opinion of this WCJ, the Medical Records of Dr. Brautbar and Dr. Zlotolow are not Substantial Medical Evidence. In the Opinion of this WCJ there needs to be further development of the record under Tyler and McClune. This WCJ would like to appoint a regular doctor under Labor Code Section §5701 to examine Applicant Petitioner and the medical reports to establish whether there was melanoma in Applicant Petitioner’s neck which would not be covered and would be exposed to the sun by Applicant’s Petitioner’s wearing a T-shirt. The California Supreme Court has long held that an employee need only show the proof of industrial causation is reasonably probable, although not certain or convincing. (McAllister supra). Here Applicant Petitioner has satisfied McAllister. Pursuant to the Medical Report of Dr. Hamada dated November 12, 2018, Applicant Petitioner sustained industrial injury to his back and neck.

Applicant worked as forklift operator outside for 3 years without head covering, exposing skin to sunlight.

Favours Applicant prevailed

Supports applicant's claim of industrial causation of melanoma due to sun exposure at work.

From the decision · page 2We first consider applicant’s Petition. In the Report, the WCJ stated that: “Applicant testified as follows: he used a forklift outside for 3 years without a roof over his head or any covering over his head. The sunlight hit his head, neck, back and arms. He did not wear a uniform. While working he wore a short-sleeved shirt, sleeveless, or long-sleeved shirt.” Minutes of hearing Summary of evidence dated April 1, 2020 at page 3:12-14).

Photographic wound documentation shows melanoma wound on upper back, not near neck.

Favours Applicant prevailed

Indicates location of melanoma injury relevant to industrial causation claim.

From the decision · page 3ER in March 2015 when he was diagnosed by the doctor with skin cancer. He further testified that before this diagnosis of skin cancer, it had never been diagnosed before. Applicant did not tell the truth that his first knowledge of melanoma was in March 2015 when he was notified of skin cancer in October 2014. But Applicant Petitioner’s knowledge of when he had cancer is not a determining factor in whether he had cancer AOE/COE during the continuous trauma period. The location of Applicant’s skin cancer to the back is depicted in a Photographic Wound Documentation dated 05/05/15 at Chino Valley Medical Center. (Exhibit K designated portions of SDT records from Chino Medical Center dated 05/12/2015). From this photograph it does not appear that there was any removal of skin in or near Applicant’s neck and that the wound created by the cancer removal was located in the upper part of applicant’s back and was not near the neck area. Applicant saw Dr. Nachman Brautbar on 11/27/18, January 16, 2019 and on other occasions, however, this WCJ is not considering Dr. Brautbar’s Medical Reports in that the record does not include a Permanent and Stationary Report by Dr. Brautbar. In the Opinion of this WCJ, Dr. Brautbar’s reporting is not complete and is not substantial evidence without an MMI Report.

Medical reports of Drs. Brautbar and Zlotolow lack Permanent and Stationary Reports and physical examination evidence, thus not substantial evidence.

Favours Defendant prevailed

Leads to remand for further medical development to establish industrial causation of melanoma.

From the decision · page 3ER in March 2015 when he was diagnosed by the doctor with skin cancer. He further testified that before this diagnosis of skin cancer, it had never been diagnosed before. Applicant did not tell the truth that his first knowledge of melanoma was in March 2015 when he was notified of skin cancer in October 2014. But Applicant Petitioner’s knowledge of when he had cancer is not a determining factor in whether he had cancer AOE/COE during the continuous trauma period. The location of Applicant’s skin cancer to the back is depicted in a Photographic Wound Documentation dated 05/05/15 at Chino Valley Medical Center. (Exhibit K designated portions of SDT records from Chino Medical Center dated 05/12/2015). From this photograph it does not appear that there was any removal of skin in or near Applicant’s neck and that the wound created by the cancer removal was located in the upper part of applicant’s back and was not near the neck area. Applicant saw Dr. Nachman Brautbar on 11/27/18, January 16, 2019 and on other occasions, however, this WCJ is not considering Dr. Brautbar’s Medical Reports in that the record does not include a Permanent and Stationary Report by Dr. Brautbar. In the Opinion of this WCJ, Dr. Brautbar’s reporting is not complete and is not substantial evidence without an MMI Report.

Applicant's June 30, 2016 deposition transcript was taken under oath with representation and interpreter and is admissible evidence.

Favours Applicant prevailed

Supports applicant's procedural right to have deposition admitted and weighed by WCJ.

From the decision · page 6was entitled to introduce the deposition transcript because the statements made by applicant’s supervisor, who was defendant’s employee at the time of his deposition, were admissible as party admissions even if the deposition transcript contained inadmissible hearsay. The WCJ and the Appeals Board are not bound by common law or statutory rules of evidence, and admission of the supervisor’s deposition transcript did not cause undue surprise or prejudice to defendant because defense counsel participated in the supervisor’s deposition and had an opportunity to cross- examine the supervisor. Here, defendant’s attorney took applicant’s depositions with the assistance of a Spanish language translator, and applicant was represented by an attorney. When applicant explained his medication regime, he was asked if he was able to testify, and he replied that he was. Moreover, his attorney then clarified on the record that applicant was able to testify, and the deposition proceeded. Yet, in her Report, the WCJ discussed applicant’s credibility and whether the applicant’s deposition testimony was substantial evidence. She apparently believed that because she did not have a list of applicant’s medications, she could not “determine whether or not applicant had the capacity to testify.

Medical reports not considered substantial evidence due to lack of Permanent and Stationary Report.

No Permanent and Stationary Report included in the record.

From the decision · page 3ER in March 2015 when he was diagnosed by the doctor with skin cancer. He further testified that before this diagnosis of skin cancer, it had never been diagnosed before. Applicant did not tell the truth that his first knowledge of melanoma was in March 2015 when he was notified of skin cancer in October 2014. But Applicant Petitioner’s knowledge of when he had cancer is not a determining factor in whether he had cancer AOE/COE during the continuous trauma period. The location of Applicant’s skin cancer to the back is depicted in a Photographic Wound Documentation dated 05/05/15 at Chino Valley Medical Center. (Exhibit K designated portions of SDT records from Chino Medical Center dated 05/12/2015). From this photograph it does not appear that there was any removal of skin in or near Applicant’s neck and that the wound created by the cancer removal was located in the upper part of applicant’s back and was not near the neck area. Applicant saw Dr. Nachman Brautbar on 11/27/18, January 16, 2019 and on other occasions, however, this WCJ is not considering Dr. Brautbar’s Medical Reports in that the record does not include a Permanent and Stationary Report by Dr. Brautbar. In the Opinion of this WCJ, Dr. Brautbar’s reporting is not complete and is not substantial evidence without an MMI Report.

Medical reports not substantial evidence; no physical exam of back and neck shown; opinion on sun exposure causation without merit.

No report showing physical examination of back and neck; internist specialty questioned for skin condition.

From the decision · page 3Applicant was seen by Dr. Ronald Zlotolow, PTP in internal medicine on July 11, 2019. (Exhibit 11 dated 06/07/19 through 07/31/19). On June 07, 2019, he wrote two PR-2 report that give a diagnosis of Psoriasis, dorsalgia unspecified, allergic contact dermatitis, unspecified. In his report there is no diagnosis of cancer. Defendant Petitioners’ argue the significance of psoriasis on Applicant Petitioner’s neck however any medical interpretation of the presence of psoriasis on the neck is a medical condition for which Dr. Zlotolow did not explain in his medical reports. On July 31, 2019, Dr. Zlotolow issued a Permanent and Stationary Report. There is no medical report which shows that Dr. Zlotolow performed a physical examination of applicant’s body including his back and neck. His assertion that he examined Applicant’s back and neck is suspect. Defendant Petitioners argue that because Dr. Zlotolow it is an internist, he would not have occasion to look at Applicant Petitioner’s neck and back. One might further argue that psoriasis on the neck would be out of the specialization of an internist and more and in the specialization of a dermatologist.

Medical report for defendant not substantial evidence; did not personally examine applicant's back and neck.

No personal examination of back and neck.

From the decision · page 3Dr. Bernard Raskin, a dermatologist, wrote a Labor Code Section §4050 medical report for defendant. (Marked for identification purposes only as Defendants’ Exhibit F). He did not personally see Applicant’s back and neck in

Labor Code §5807

Labor Code section 5807 allowing flexible rules of evidence in WC proceedings.

WCJ may admit evidence not admissible under common law rules to ascertain substantial rights and justice.

From the decision · page 5Labor Code section 5807 states in relevant part that: All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division....

Code of Civil Procedure §2025.620

Code of Civil Procedure section 2025.620 regarding admissibility of deposition transcripts.

Deposition transcripts taken under oath with representation and interpreter are admissible and must be weighed by the WCJ.

From the decision · page 4Although we are rescinding the F&O, we will consider the contentions in defendant’s Petition with respect to the admission of applicant’s June 30, 2016 deposition transcript. (Exhibit I.) We observe that the WCJ did not actually issue a finding that the deposition transcript was not admissible so that upon return the WCJ should consider the issue and issue an order. We begin with the relevant code sections governing admission of exhibits. Code of Civil Procedure section 2025.620 states in relevant part that: At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition … so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

Labor Code §5708

Labor Code section 5708 allowing inquiry by oral testimony and records to ascertain substantial rights.

WCJ may admit and consider evidence to carry out justly the spirit of the WC law.

From the decision · page 5Labor Code section 5807 states in relevant part that: All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division....

Labor Code §5709

Labor Code section 5709 stating no informality invalidates orders or decisions.

Admission of evidence not admissible under common law rules does not invalidate decisions.

From the decision · page 5No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division. No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.

Labor Code §5701

Labor Code section 5701 regarding appointment of regular doctor for medical examination.

WCAB ordered appointment of a regular doctor to examine applicant and medical reports for melanoma determination.

From the decision · page 4In the Opinion of this WCJ, the Medical Records of Dr. Brautbar and Dr. Zlotolow are not Substantial Medical Evidence. In the Opinion of this WCJ there needs to be further development of the record under Tyler and McClune. This WCJ would like to appoint a regular doctor under Labor Code Section §5701 to examine Applicant Petitioner and the medical reports to establish whether there was melanoma in Applicant Petitioner’s neck which would not be covered and would be exposed to the sun by Applicant’s Petitioner’s wearing a T-shirt. The California Supreme Court has long held that an employee need only show the proof of industrial causation is reasonably probable, although not certain or convincing. (McAllister supra). Here Applicant Petitioner has satisfied McAllister. Pursuant to the Medical Report of Dr. Hamada dated November 12, 2018, Applicant Petitioner sustained industrial injury to his back and neck.

Applicant's testimony about sun exposure while working as forklift operator outside without head covering for 3 years.

From the decision · page 2We first consider applicant’s Petition. In the Report, the WCJ stated that: “Applicant testified as follows: he used a forklift outside for 3 years without a roof over his head or any covering over his head. The sunlight hit his head, neck, back and arms. He did not wear a uniform. While working he wore a short-sleeved shirt, sleeveless, or long-sleeved shirt.” Minutes of hearing Summary of evidence dated April 1, 2020 at page 3:12-14).

Photographic wound documentation showing melanoma wound on upper back, not near neck.

From the decision · page 3ER in March 2015 when he was diagnosed by the doctor with skin cancer. He further testified that before this diagnosis of skin cancer, it had never been diagnosed before. Applicant did not tell the truth that his first knowledge of melanoma was in March 2015 when he was notified of skin cancer in October 2014. But Applicant Petitioner’s knowledge of when he had cancer is not a determining factor in whether he had cancer AOE/COE during the continuous trauma period. The location of Applicant’s skin cancer to the back is depicted in a Photographic Wound Documentation dated 05/05/15 at Chino Valley Medical Center. (Exhibit K designated portions of SDT records from Chino Medical Center dated 05/12/2015). From this photograph it does not appear that there was any removal of skin in or near Applicant’s neck and that the wound created by the cancer removal was located in the upper part of applicant’s back and was not near the neck area. Applicant saw Dr. Nachman Brautbar on 11/27/18, January 16, 2019 and on other occasions, however, this WCJ is not considering Dr. Brautbar’s Medical Reports in that the record does not include a Permanent and Stationary Report by Dr. Brautbar. In the Opinion of this WCJ, Dr. Brautbar’s reporting is not complete and is not substantial evidence without an MMI Report.