ADJ11060751 · January 20, 2023

The Appeals Board found that the WCJ erred in denying the Petition to Reopen without allowing further medical evaluation and development of the record as required by Labor Code section 4061(i) and Administrator Rule 10109, and thus granted reconsideration and returned the matter for further proceedings.

From the decision · page 1Applicant, in pro per, seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on August 22, 2022, wherein the WCJ found in pertinent part that applicant did not prove injury to the additional body parts claimed in his December 1, 2021 Petition to Reopen and that he did not submit any evidence indicating that he had sustained any new and further disability; the WCJ ordered that applicant take nothing by reason of his Petition to Reopen.

The Appeals Board failed to act on applicant's Petition to Reconsider within 60 days, tolling the time to act and requiring reconsideration.

Favours Applicant prevailed

This procedural error by the Appeals Board justified granting reconsideration and rescinding the prior Findings and Order.

From the decision · page 3In this case, the Appeals Board failed to act on applicant's petition within 60 days of its filing on September 8, 2022, through no fault of applicant. Therefore, considering that the Appeals Board's failure to act on the petition was in error, we find that our time to act was tolled.

The Petition to Reopen raised issues about the extent of permanent impairment requiring medical evaluation by treating physician and QME before readiness to proceed.

Favours Applicant prevailed

Compliance with Labor Code section 4061(i) required further medical evaluation and record development before proceeding.

From the decision · page 4caused by applicant's injury. Therefore, a declaration of readiness to proceed, pertaining to the

Diagnosed Depressive Disorder, NOS Somatic Symptom Disorder with Predominant pain; determined psychiatric condition was predominantly caused by employment.

Dr. Perez's psychiatric evaluation was considered in relation to the psychiatric injury claim in the Petition to Reopen.

From the decision · page 8On June 26, 2018, applicant was seen for a psychological evaluation by clinical psychologist Robert Perez, Ph.D. (App. Exh. 5, Robert Perez, Ph.D., July 3, 2018.) Dr. Perez

Evaluated applicant and found he had reached MMI/P&S status; concluded difficulty in smell did not cause whole person impairment.

Dr. Rubenstein's evaluation was part of the medical evidence considered for the injury to the nose/sense of smell.

From the decision · page 8Otolaryngology QME Ronald L. Rubenstein, M.D., evaluated applicant on November

Diagnosed left shoulder bursitis, left shoulder rotator cuff syndrome, sternum pain, thoracic sprain/strain, lumbar sprain/strain, lumbago, right knee sprain/strain, and bilateral ankle pain; noted applicant reached MMI/P&S status; no medical evidence of compensable consequence injury to the left hip.

The medical evaluations by Dr. Sabsovich were part of the record considered in relation to the permanent disability and additional body parts claims in the Petition to Reopen.

From the decision · page 7On April 5, 2018, applicant was evaluated by pain medicine qualified medical examiner (QME) Ilya Sabsovich, M.D. (Def. Exh. D, Dr. Sabsovich, April 5, 2018.) Dr. Sabsovich examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having left shoulder bursitis, left shoulder rotator cuff syndrome, sternum pain, thoracic sprain/strain, lumbar sprain/strain, lumbago, right knee sprain/strain, and bilateral ankle pain, and he noted that applicant's condition had reached maximum medical improvement/permanent and stationary (MMI/P&S) status. (Def. Exh. D, p. 16.)

Lab. Code, 4061(i)

No issue relating to permanent impairment and limitations may proceed without medical evaluation by treating physician and agreed or qualified medical evaluator.

The Petition to Reopen could not properly proceed without required medical evaluations; the Appeals Board returned the matter for further development to comply with this statute.

From the decision · page 3Pursuant to Labor Code section 4061(i): No issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator. With the exception of an evaluation or evaluations prepared by the treating physician or physicians, no evaluation of permanent impairment and limitations resulting from the injury shall be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be admissible in any proceeding before the appeals board. (Lab. Code, § 4061.)

Cal. Code Regs., tit. 8, 10109

Claims administrator must conduct reasonable and timely investigation and deal fairly and in good faith with claimants.

The Appeals Board emphasized the duty to investigate and develop the record fully to provide due process and fair adjudication.

From the decision · page 4(a) To comply with the time requirements of the Labor Code and the Administrative Director's regulations, a claims administrator must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers' compensation benefit. (b) A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee. (1) The administrator may not restrict its investigation to preparing objections or defenses to a claim, but must fully and fairly gather the pertinent information, whether that information requires, or excuses benefit payment. The investigation must supply the information needed to provide timely benefits and to document for audit the administrator's basis for its claims decisions.

Applicant's documents describing alleged errors in medical records were reviewed and found trivial and not affecting medical conclusions.

From the decision · page 9In his Report, the WCJ stated: I have read the contentions set forth in the Petition. Several are simply incorrect. Applicant claims that his documents were not reviewed. This is simply incorrect, as set forth above. Applicant claims his witnesses were disallowed. This is not true... The errors alleged in the medical record, which Applicant's documents described, seem trivial in nature. Try as I might, I am unable to understand how any of these `errors', if correctly described, could have produced or contributed to any errors in the doctor's conclusions or changed the result reached on those reports. (Report, p. 4.)