ADJ10586171 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed as untimely; reconsideration granted on Appeals Board motion; Findings and Award affirmed except issues of left eye injury, permanent disability, and attorney's fees deferred.

Petition for Reconsideration filed late and dismissed; reconsideration granted on Appeals Board motion; Findings and Award affirmed except issues of left eye injury, permanent disability, and attorney's fees deferred.

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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.

AOE/COERemandedleft eye

The record was found insufficient to establish injury to the left eye; further development was ordered but applicant did not timely object to the specialist's report or timely file the petition for reconsideration.

From the decision · page 7Here, as set forth by the WCJ in his Report, the record regarding applicant's claimed injury to his left eye is not sufficient. Thus, as a matter of due process, further development of the record is appropriate. Applicant is admonished that he should obtain the additional evidence forthwith.

The facts that decided it

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

The rules the panel named

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

Labor Code sections 5900(a), 5903; California Code of Regulations, title 8, sections 10600, 10940(a), 10615(b); Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Rymer v. Hagler (1989) 46 Cal.Comp.Cases 984; U.S. Pipe & Foundry Co. v. Industrial Acc. Com. (1962) 201 Cal.App.2d 545.

Petition for Reconsideration must be filed within 25 days of service of decision; proof of mailing insufficient; time limit is jurisdictional and untimely petitions must be dismissed.

The petition was filed more than 30 days after the WCJ's decision and was dismissed as untimely.

From the decision · page 4There are 25 days allowed within which to file a petition for reconsideration from a "final"

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284; Kaiser Co. v. Industrial Acc. Com. (1952) 109 Cal.App.2d 54; Katzin v.

Due process requires notice and meaningful opportunity to present evidence; fair hearing includes opportunity to call and cross-examine witnesses, introduce exhibits, and offer rebuttal evidence.

The Appeals Board found further development of the record appropriate to ensure due process regarding the left eye injury claim.

From the decision · page 5II. All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) 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. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v.

Labor Code sections 5903, 5952(d); 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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162.

Decisions must be supported by substantial evidence; medical opinion must be based on reasonable medical probability and adequate examination; medical reports based on speculation or inadequate history are not substantial evidence.

The WCJ and Appeals Board have a duty to develop the record when evidence is insufficient; further development was ordered for the left eye injury claim.

From the decision · page 6It 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].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].)

ADJ10586171 · December 15, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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