What the panel ordered
Petition for Reconsideration granted; final decision deferred pending further review of the merits and the record.
Applicant sought reconsideration of the WCJ's Findings and Order dated August 8, 2023, which found no industrial injury and ordered applicant take nothing. The Appeals Board granted reconsideration and deferred a final decision pending further review of the merits and the record.
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 WCJ found no industrial injury based on lack of substantial evidence, but the Appeals Board found the WCJ did not conduct a full Tensfeldt analysis or address admissibility of Dr. Smith's report, and further record development may be appropriate.
From the decision · page 3Code, § 5705 ["The burden of proof rests upon the party or lien claimant holding the affirmative of the issue."].) Therefore, the burden of proof rests with the employer to produce evidence that applicant was convicted under section 1871.4, and thus, pursuant to section 1871.5, its liability for compensation "owed or received as a result of" that conviction should be reduced or barred. Here, the WCJ did not conduct a full Tensfeldt analysis; instead, she concluded that applicant did not sustain industrial injury based on the lack of substantial evidence. (See Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd.