ADJ9601706 · September 8, 2023

The WCJ's decision was found vague and ambiguous, failing to address all issues presented, including permanent disability and parts of body injured, and lacking a clear basis in law, thus failing to meet statutory requirements for findings and awards.

From the decision · page 1Defendant CVS Pharmacy (defendant) seeks reconsideration of the Findings of Fact issued on June 14, 2023, wherein the workers' compensation administrative law judge (WCJ) found that the disability issues presented at trial were to be found in accordance with the Agreed Medical Evaluator (AME).

The WCJ's decision deferred further issues without specifying which issues or reasons for deferral.

Favours Applicant prevailed

This lack of clarity contributed to the decision's vagueness and failure to meet statutory requirements.

From the decision · page 5In addition to failing to address the issues raised by the parties, failing to issue a rating or rating instructions, and failing to issue an award, the Opinion on Decision purports to defer "further issues," without describing what those issues are, and why they are being deferred. (Opinion on Decision, p. 2.)

The WCJ's Findings of Fact issued June 14, 2023, failed to address the issues of permanent disability and parts of body injured substantively.

Favours Applicant prevailed

This failure rendered the decision vague, ambiguous, and unenforceable, necessitating reconsideration and remand.

From the decision · page 4The parties also placed in issue permanent disability. (Minutes, at 2:22.) The Finding of Fact indicates that "the disability issues... will be found in accordance with the Agreed Medical Examiner." (Finding of Fact No. 1.) We agree with defendant, however, that the ambit of this decision is fundamentally vague. The parties filed trial briefs with the court prior to submission for decision that provided detailed arguments on issues pertaining to the calculation of impairment and permanent disability. These issues included whether the AME appropriately instructed that various impairments be added rather than combined as described in Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 [2013 Cal. Wrk. Comp. LEXIS 34] (writ den.). The parties further briefed the issue of whether the AME appropriately assessed impairment under the principles set forth in Alamaraz/Guzman. Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74

The WCJ did not issue a permanent disability rating, rating instructions, or an award.

Favours Applicant prevailed

Without these, the decision could not be enforced as a judgment, undermining the parties' ability to enforce benefits.

From the decision · page 5Moreover, an injured employee's permanent disability rating and each component element of that rating are questions of fact to be resolved by the WCAB. (Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 618 [20 I.A.C. 390, 391-392]; Subsequent Injuries Fund v. Industrial Acc. Com. (Rogers) (1964) 226 Cal.App.2d 136, 152 [29 Cal.Comp.Cases 59, 69].) Accordingly, after reviewing the evidence, it is the WCJ's function to formulate rating instructions, which "are, in effect, tentative findings of fact." (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Stapp) (1978) 81 Cal.App.3d 586, 587 [43 Cal.Comp.Cases 658, 658]; Fidelity & Casualty Co. v. Workmen's Comp. Appeals Bd. (Ratzel) (1967) 252 Cal.App.2d 327, 331 [32 Cal.Comp.Cases 271, 273].) Here, the WCJ did not address the underlying issues with respect to the whole person impairment, did not address whether applicant sustained injury to the right hand, and issued no rating or corresponding award.2

The AME's agreed medical reports were relied upon by the WCJ for disability issues, but the WCJ's decision failed to substantively address the calculation of impairment and permanent disability issues raised by the parties.

The WCJ found disability issues in accordance with the AME's reports but did not address the detailed issues of impairment calculation and permanent disability raised by the parties.

From the decision · page 2It is found that the disability issues presented herein by the applicant, will be found in accordance with the agreed Medical Examiner, Dr. Jeffrey Berman. Joint Exhibit BB dated 05-17-2021 and Joint Exhibit BBB dated 10-21-2022.

Hamilton, supra

The WCJ must refer to the evidence in the opinion on decision and clearly designate the evidence forming the basis of the decision, which must be based on admitted evidence and supported by substantial evidence.

The WCJ's decision did not clearly designate the evidence or provide substantial evidence support for the issues raised, including permanent disability.

From the decision · page 3As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.)

Labor Code section 5313

The WCJ must make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties, including a summary of the evidence and reasons for the determination.

The WCJ's decision was found vague and ambiguous, failing to meet the requirements of section 5313 for findings and awards.

Labor Code section 5815

Every order, decision or award must contain a determination of all issues presented and not previously determined; any issue not determined is deemed decided adversely to the party raising it.

The WCJ failed to determine all issues presented, rendering the decision incomplete and subject to reconsideration.

Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753

Decisions of the WCAB must state the evidence relied upon and specify in detail the reasons for the decision to assist reviewing courts and make appeals meaningful.

The WCJ's decision lacked detailed reasons and evidence reliance, undermining the review and appeal process.

From the decision · page 4The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision...." (Hamilton, supra, at p. 476.) The Court of Appeal has further observed that pursuant to Labor Code section 5908.5, decisions of the WCAB must state the evidence relied upon and specify in detail the reasons for the decision. (Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351] (Evans).) The purpose of the requirement is "to assist the reviewing court to ascertain the principles relied upon by the lower tribunal, to help that tribunal avoid careless or arbitrary action, and to make the right of appeal or of seeking review more meaningful." (Evans, supra, at p. 755.)

Applicant presented credible testimony regarding his employment and injuries.

From the decision · page 2The accompanying Opinion on Decision reviews the case history, and observes that applicant presented credible testimony regarding his employment and injuries. (Opinion on Decision, June 14, 2023, at p. 2.) The Opinion concludes, "[t]he Court finds that the industrial injuries sustained by the Applicant should be found in accordance to the agreed Medical Reporting of Dr. Berman. Further issues shall be deferred." (Ibid.)