ADJ7437728 — California WCAB decision

What the panel ordered

Affirmed F&A in ADJ7437728 (finding injury AOE/COE and 89% PD); rescinded F&A in ADJ7238534 and deferred issue of injury AOE/COE, remanded for further proceedings.

Petitions for Reconsideration by applicant (ADJ7437728, ADJ7238534) and defendant (ADJ7437728) of WCJ's Findings and Awards; Board granted reconsideration, reviewed record, and issues this decision after reconsideration.

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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.

Cumulative traumaRemandednervous system · psyche · brain · left leg · eyes · left shoulder · left upper arm · lower back · right wrist · neck · face · elbows · ankles · left wrist · right shoulder · hernia · internal

Board found WCJ's finding inconsistent with parties' stipulations and due process; deferred issue and remanded for further proceedings.

From the decision · page 9through April 15, 2010, as a retail sales/warehouse person, at 2416 East Gage Avenue, Huntington Park, California, by Plaza de Mariscos, claims to have sustained injury arising out of and occurring in the course of employment to his nervous system, psyche, brain, left leg, eyes, left shoulder, left upper arm, lower back, right wrist, neck, face, elbows, ankles, left wrist, right shoulder, internal system, and in the form of a hernia; the issue of whether the applicant sustained a cumulative injury arising out of and occurring in the course of employment, as claimed, is deferred.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Gangwish v. WCAB (2001) 89 Cal.App.4th 1284; Rucker v. WCAB (2000) 82 Cal. App. 4th 151.

If a finding is to be made contrary to a stipulation, parties must be given opportunity to appear and present their positions before a decision inconsistent with stipulations is issued.

Board found parties were not given opportunity to be heard before WCJ issued decision inconsistent with stipulations; remanded for further proceedings.

From the decision · page 8Based thereon, if a finding is going to be made that is contrary to a stipulation of the parties, the parties are to be given the opportunity to appear and present their respective positions regarding the stipulations, prior to a WCJ issuing the decision that is inconsistent with the stipulations previously submitted by the parties. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal. App. 4th 151 [65 Cal.Comp.Cases 805].)

Labor Code § 5702; Cal. Code Regs., tit. 8, § 10517; Draper v. WCAB (1983) 147 Cal. App. 3d 502; Turner Gas Co. v. WCAB (1975) 47 Cal.App.3d 286; Memorex Corp. v. WCAB (Kraten) (1977 W/D) 42 Cal.Comp.Cases 458.

Stipulations between parties are not binding on the Appeals Board or WCJ, who may reject or amend them and base decisions on the evidence presented at hearing.

Board noted stipulations are not binding but due process requires parties be given opportunity to be heard before findings contrary to stipulations are made.

From the decision · page 7It is well established that while stipulations between adversary parties concerning the existence or nonexistence of material facts are permissible in workers' compensation cases, under Labor Code, section 5702, the stipulations are not binding on the Appeals Board or the WCJ and the Appeals Board or the WCJ may reject or amend a stipulation and base the decision on the evidence presented at the hearing. (Lab. Code, § 5702; Cal. Code Regs., tit. 8, § 10517; Draper v. Workers' Comp. Appeals Bd. (1983) 147 Cal. App. 3d 502 [48 Cal.Comp.Cases 748]; Turner Gas Co. v. Workmen's Comp. Appeals Bd., (1975) 47 Cal.App.3d 286 [40 Cal.Comp.Cases 253]; Memorex Corp. v. Workmen's Comp. Appeals Bd. (Kraten) (1977 W/D) 42 Cal.Comp.Cases 458.) However, pursuant to Appeals Board Rule 10835:

ADJ7437728 · February 13, 2024

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