ADJ9784641 · September 20, 2023

The trial record did not contain substantial evidence necessary to adjudicate the threshold issues of injury AOE/COE and parts of body injured, nor evidence regarding notice, claim forms, or proper medical-legal procedures. Further development of the record is required.

From the decision · page 5As discussed above, the trial record does not contain the evidence necessary for the WCJ or the Appeals Board to properly adjudicate and determine the issues submitted by the parties, including the threshold issues of injury AOAE/COE and parts of body injured. Thus, it is necessary that the trial record be further developed.

The record lacked orthopedic medical records or medical-legal reports necessary to determine injury AOE/COE and parts of body injured.

Favours neutral

Without such evidence, the Appeals Board could not properly adjudicate the issues and remanded for further development.

From the decision · page 4Exhs 1, 2, and 3, as quoted above.) Also, in his November 27, 2017 report, QME Dr. Deck noted that applicant had chronic pain in his neck/back and his upper and lower extremities. (Joint Exh. 106, p. 16.) However, there are no medical records from orthopedic medical providers nor any orthopedic medical-legal reports. Absent such evidence, there is no factual basis for determining the issues of injury AOE/COE and parts of body injured. Further, the record contains no evidence pertaining to the issues of proper notice, knowledge of injury, claim forms, etc. (Lab. Code, § 5400 et seq.); nor is there evidence as to whether proper contested claim medical-legal procedures were followed (Lab. Code, § 4060 et seq.). Therefore, issues such as timeliness and/or waiver cannot be resolved.

Dr. Deck noted applicant had chronic pain in neck/back and upper and lower extremities, but there are no orthopedic medical-legal reports in the record.

Cited as evidence of symptoms, but not sufficient for orthopedic injury determination.

From the decision · page 4Exhs 1, 2, and 3, as quoted above.) Also, in his November 27, 2017 report, QME Dr. Deck noted that applicant had chronic pain in his neck/back and his upper and lower extremities. (Joint Exh. 106, p. 16.) However, there are no medical records from orthopedic medical providers nor any orthopedic medical-legal reports. Absent such evidence, there is no factual basis for determining the issues of injury AOE/COE and parts of body injured. Further, the record contains no evidence pertaining to the issues of proper notice, knowledge of injury, claim forms, etc. (Lab. Code, § 5400 et seq.); nor is there evidence as to whether proper contested claim medical-legal procedures were followed (Lab. Code, § 4060 et seq.). Therefore, issues such as timeliness and/or waiver cannot be resolved.

Lab. Code § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (en banc)

Any award, order or decision of the Appeals Board must be supported by substantial evidence in light of the entire record.

The Appeals Board found the record lacked substantial evidence to adjudicate the issues and remanded for further development.

From the decision · page 4DISCUSSION We must first point out that it is well established that any award, order or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16.) Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) When deciding whether an applicant sustained a cumulative trauma injury, the decision must be based on an expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) In this matter, in addition to his psychiatric injury claim, applicant claimed injury to his "back, and trunk." At his depositions, applicant testified several times regarding his orthopedic symptoms. (See App.

Lab. Code §§ 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389

The WCJ and the Appeals Board have a duty to further develop the record when it does not contain substantial evidence pertaining to a threshold issue.

The Appeals Board remanded for further development of the record to properly adjudicate the issues.

From the decision · page 5The WCJ and the Appeals Board have a duty to further develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to adjudicate the issues submitted for decision. (Lab. Code § 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396 [65 Cal.Comp.Cases 264]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924].)

Applicant's deposition testimony regarding physical/orthopedic symptoms, including pain and tension in various body parts.

From the decision · page 2Q... Who were the doctors that you saw? A Dr. Rocillo. Then Dr. Singh. She is a psychologist. She's MD. Then I saw Dr. Mai. She's MD, too. Psychologist.... And then I continue then with Dr. Tran with my physical therapy. My arms, tension, my legs, my hips, my shoulders. (App. Exh. 2, pp. August 10, 2016, deposition transcript, pp. 71 § 72.) Q... Tell me your physical symptoms you're having. A Oh, this tension in my arms, both arms. My extremities. My -- both legs. Sometimes I wobble. The center of the hips. My back. It's like my back is now transfer all the way to the shoulder now. Q So let me summarize again so we can go quickly. A And my knees. Q So what you're feeling are tension in your body -- A My arms too much. My muscle here too much. Q Okay. So, let me finish, sir. So we [you] have tension in your body, in your muscles and all over your body from stress? A Legs especially. All legs. Two legs. Center of my hips. (App. Exh. 2, pp. 109 § 110.)