ADJ9435746 — California WCAB decision

What the panel ordered

March 23, 2021 Findings and Award rescinded; Petition for Reconsideration dismissed as untimely; matter returned to trial level for further proceedings.

Applicant sought reconsideration of a March 23, 2021 Findings and Award; WCAB granted reconsideration on its own motion and reviewed the exclusion of medical reports and the findings on injury and disability.

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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.

Earnings / average weekly earningsApplicant prevailed

The WCJ excluded secondary and consulting physician reports and prior PTP reports, but the WCAB found no legal basis for exclusion and held due process requires admission of all relevant reports.

From the decision · page 4Applicant's Exhibits 7-9, reports of prior PTP, Dr. Quesada, should similarly be admitted into the record. The WCJ argues that under AD Rule 9785(b)(1) (Cal. Code Regs., tit. 8, § 9785(b)(1)), applicant is not to have more than one PTP at any given time. There is no evidence in the record, however, to suggest that applicant was being seen by another PTP while Dr. Quesada served as applicant's PTP. Further, MPN issues aside, applicant is not prohibited from seeking a new PTP at any point in time and may replace a PTP for any number of reasons. Replacement, however, does not mean the reports of the prior PTP suddenly become invalid. Ultimately, the fact that the WCJ is unsure of Dr. Quesada's status is irrelevant insofar as the issue of admissibility is concerned. As with consulting physician reports, due process requires the admission of all relevant reports, including the prior PTP reports of Dr. Quesada.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Secondary and consulting physician reports were previously admitted without objection and should not have been excluded.

Favours Applicant prevailed

Their exclusion was the basis for rescinding the WCJ's decision and remanding for further proceedings.

From the decision · page 3Turning now to the issue of admissibility of the exhibits excluded by the WCJ, in his March 23, 2021 F&A, the WCJ found applicant's Exhibits 3-6, which consist of secondary and consulting physician reports from Dr. David Schames, Dr. Sanjivan Singh Kohli, and Dr. Zhanna Feldsher, to be inadmissible. These reports, however, were previously admitted without objection, as evidenced by the original Minutes of Hearing dated March 5, 2020. As such, we agree with applicant that they should not now be excluded from the record.

No evidence applicant was being seen by another PTP while Dr. Quesada served as PTP; prior PTP reports should be admitted.

Favours Applicant prevailed

The WCJ's exclusion of Dr. Quesada's reports was not supported by the record, requiring their admission and further proceedings.

From the decision · page 4Applicant's Exhibits 7-9, reports of prior PTP, Dr. Quesada, should similarly be admitted into the record. The WCJ argues that under AD Rule 9785(b)(1) (Cal. Code Regs., tit. 8, § 9785(b)(1)), applicant is not to have more than one PTP at any given time. There is no evidence in the record, however, to suggest that applicant was being seen by another PTP while Dr. Quesada served as applicant's PTP. Further, MPN issues aside, applicant is not prohibited from seeking a new PTP at any point in time and may replace a PTP for any number of reasons. Replacement, however, does not mean the reports of the prior PTP suddenly become invalid. Ultimately, the fact that the WCJ is unsure of Dr. Quesada's status is irrelevant insofar as the issue of admissibility is concerned. As with consulting physician reports, due process requires the admission of all relevant reports, including the prior PTP reports of Dr. Quesada.

The rules the panel named

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

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Carstens v. Pillsbury (1916) 172 Cal. 572; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396

Due process requires the admission of all relevant reports, including prior PTP and consulting physician reports.

The WCAB held that due process and substantial justice require the admission of all relevant medical reports to ensure a full and accurate record.

From the decision · page 4On the issue of due process, it is well established under both the California and United States Constitutions, that parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [97 Cal Rptr. 2d 852, 65 Cal.Comp.Cases 805].) A fair hearing is "... one of `the rudiments of fair play' assured to every litigant..." (Rucker, supra at 158.) As stated by the California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States and this cannot be done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627

A decision must be based on admitted evidence in the record and supported by substantial evidence.

The WCAB emphasized the need for decisions to be based on the full evidentiary record and substantial evidence.

From the decision · page 5Further, the court in Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [33 Cal.Comp.Cases 350-351], has clarified that a decision "must be based on admitted evidence in the record" (Id. at p. 478) and must be supported by substantial evidence. (§ 5903, 5952, subd. (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. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) This "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) Pursuant to McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].

ADJ9435746 · August 20, 2024

What the panel ordered

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The facts that decided it

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