ADJ7785974 · February 12, 2021

The Appeals Board granted reconsideration to amend the F&O to allow the parties to agree to an AME instead of proceeding with the appointed physician's evaluation, finding no substantial prejudice or irreparable harm if removal was denied and that reconsideration would be an adequate remedy.

From the decision · page 1We have considered the allegations of defendant's Petition for Removal, applicant's answer and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Defendant requested approval to file a supplemental pleading and applicant filed an objection to defendant's supplemental pleading. We accept both supplemental pleadings per WCAB Rule 10964. (Cal. Code Regs., tit. 8, former § 10848, now § 10964 (eff. Jan. 1, 2020).) Based on our review of the record and for the reasons discussed below, we will grant the Petition as one seeking reconsideration solely to amend the Findings of Fact, Order and Opinion on Decision (F&O) to provide the parties with an opportunity to agree to an agreed medical evaluator (AME) in lieu of proceeding with an evaluation with the appointed physician. We will otherwise affirm the F&O.

The WCJ's decision included a finding regarding a threshold issue, making it a final order subject to reconsideration rather than removal.

Favours neutral

This made the WCJ's decision a final order and affected the standard of review applied by the Appeals Board.

From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The defendant challenged only the WCJ's appointment of an independent medical evaluator to evaluate Daniel the applicant, the deceased employee's son, under section 5701.

Favours neutral

This specific challenge triggered application of the removal standard rather than reconsideration standard.

From the decision · page 2Although the decision contains a finding that is final, defendant is only challenging the WCJ's appointment of an independent medical evaluator to evaluate Daniel the applicant, the deceased employee's son, per section 5701. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

The record did not reflect any preexisting physicians who had evaluated Daniel the applicant, so the record could not be developed with existing physicians.

Favours Applicant prevailed

This justified the consideration of an AME before appointing a regular physician under McDuffie.

From the decision · page 3The WCJ in this matter therefore has the authority to appoint a regular physician to evaluate Daniel the applicant. The record does not reflect that there are preexisting physicians that have already evaluated Daniel the applicant. The record consequently cannot be developed with existing physicians. However, if new physicians are needed, the parties are then to consider using an AME before a regular physician is appointed per McDuffie.

Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy rarely exercised by the Appeals Board; removal granted only if petitioner shows significant prejudice or irreparable harm and reconsideration is inadequate.

Applied removal standard to defendant's petition challenging appointment of independent medical evaluator.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).)

Lab. Code, 5701; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

The Appeals Board has discretionary authority under Labor Code section 5701 to develop the record when medical record is not substantial evidence.

Applied to justify appointment of a regular physician if parties cannot agree to an AME.

From the decision · page 2The Appeals Board has the discretionary authority under section 5701 to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701; see also Lab. Code, § 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Per McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 142 (Appeals Board en banc), the preferred procedure for developing a deficient record is to first allow supplementation of the medical record by the physicians who have already reported in the case. "If the use of physicians new to the case