ADJ7442612 · October 17, 2023

The Appeals Board found that the lien claimant's petition raised substantial legal and procedural issues that were not properly addressed by the WCJ, including compliance with lien declaration requirements and the validity of the request for authorization, warranting reconsideration and further development of the record.

From the decision · page 1Lien claimant Nogales Psychological Counseling seeks reconsideration and removal of the July 27, 2023 Joint Findings and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found in relevant part that there was no valid appointment of a treating physician; that there were no valid requests for authorization (RFAs) issued by any physician; that there was no compliance with Labor Code1 section 4903.8 [sic]; that defendants were denied the right to control medical treatment; and that there was no referral by Dr. Black/Grand Chiropractic to lien claimant Nogales Psychological Counseling. The WCJ ordered in relevant part that lien claimant take nothing by way of its lien and dismissed the lien for failure to comply with section 4903.8 [sic].

Lien claimant Nogales Psychological Counseling timely complied with lien declaration requirements under section 4903.5

Favours Applicant prevailed

This compliance undermined the WCJ's basis for dismissing the lien for failure to comply with section 4903.8, supporting reconsideration.

From the decision · page 4On October 30, 2012, lien claimant filed a Notice and Request for Allowance of Lien for its lien. According to our preliminary review, lien claimant timely complied with the declaration requirement on June 1, 2017, so that it appears that there was no basis to dismiss the lien for failure to comply with section 4903.05.

Dr. Black's progress report on March 4, 2011, requested psychological consultation and was not responded to by defendant

Favours Applicant prevailed

This showed a valid request for authorization that was not addressed, supporting the lien claimant's position and the need for reconsideration.

From the decision · page 3According to our preliminary review of the record, on March 4, 2011, applicant's primary

Dr. Black issued a progress report on March 4, 2011, requesting pain management and psychological consultation, which was not responded to by the defendant, supporting the lien claimant's position on authorization requests.

The report was cited as evidence of a valid request for authorization that was not properly addressed by the WCJ, impacting the reconsideration outcome.

From the decision · page 3According to our preliminary review of the record, on March 4, 2011, applicant's primary

Lab. Code, §§ 5903, 5952(d); Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Substantial evidence standard for WCAB decisions

The Appeals Board emphasized the need for decisions to be supported by substantial evidence and for the record to be adequately developed to support findings.

From the decision · page 4It is well established that decisions by the Appeals Board must be supported by substantial evidence. (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. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.)

Lab. Code, §§ 5907, 5908, 5908.5, 5803, 5901

WCAB continuing jurisdiction and authority to rescind or amend orders

The Appeals Board cited its continuing jurisdiction to reconsider and amend prior orders and decisions, including the power to make new findings on issues not raised in the petition.

From the decision · page 5II. We conclude by observing that under our broad grant of authority, our jurisdiction over this matter is continuing. A grant of reconsideration has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. (See Lab. Code, § 5907, 5908, 5908.5; see also Earley v. Workers' Comp. Appeals Bd. (2023) 94 Cal.App.5th 1, 13-15 [88 Cal.Comp.Cases 769] [the Appeals Board has the authority to issue a final decision when it grants reconsideration but is not required to do so]; see generally Lab. Code, § 5803 ["The WCAB has continuing jurisdiction over its orders,

Dr. Black's progress report requesting psychological consultation was not responded to by defendant, supporting lien claimant's position

From the decision · page 3According to our preliminary review of the record, on March 4, 2011, applicant's primary