ADJ1082010 · March 30, 2021

Applicant did not establish a compensable psychiatric injury or need for psychological counseling related to the physical injuries; no legal basis to award mileage for psychological counseling.

From the decision · page 3Applicant is not entitled to reimbursement for mileage for attending psychological treatment appointments in the absence of a finding that she sustained a compensable psychiatric injury as a result of her physical injuries, in accordance with section 3208.3(b)(1). (See Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1237 [67 Cal.Comp.Cases 245].)

The WCJ correctly found that applicant is not entitled to further reimbursement of medical mileage expenses based on the evidence and the lack of explanation for new evidence; the WCAB affirmed this finding.

From the decision · page 2Defendant filed an answer. We did not receive a Report and Recommendation from the WCJ. Based on our review of the record and applicable law, we conclude that the WCJ correctly found that applicant is not entitled to further reimbursement of medical mileage expenses in ADJ1082010 or ADJ1958378. We also note that the penalties assessed by the WCJ have not been challenged upon reconsideration. Therefore, we will affirm the WCJ's decision in its entirety. Reviewing applicant's petition for reconsideration as paginated in the Electronic Adjudication Management System (EAMS), applicant apparently alleges at pages five through eight that she is entitled to additional mileage for injury-related medical treatment visits she made to Fremont Urgent Care and to a Kaiser facility located in Milpitas. However, the WCJ explained in his Opinion on Decision that he did add up mileage for the Kaiser and Fremont Urgent Care visits, as set forth in applicant's exhibits 1 and 3 (admitted into evidence at trial on June 21, 2019). For the injuries in both case numbers, the WCJ even concluded that defendant actually paid more mileage than applicant was entitled to, and again this is according to applicant's own trial exhibits 1 and 3.

Applicant's own trial exhibits showed mileage paid exceeded mileage owed.

Favours Defendant prevailed

This supported the WCJ's finding that no additional mileage reimbursement was owed.

From the decision · page 2Defendant filed an answer. We did not receive a Report and Recommendation from the WCJ. Based on our review of the record and applicable law, we conclude that the WCJ correctly found that applicant is not entitled to further reimbursement of medical mileage expenses in ADJ1082010 or ADJ1958378. We also note that the penalties assessed by the WCJ have not been challenged upon reconsideration. Therefore, we will affirm the WCJ's decision in its entirety. Reviewing applicant's petition for reconsideration as paginated in the Electronic Adjudication Management System (EAMS), applicant apparently alleges at pages five through eight that she is entitled to additional mileage for injury-related medical treatment visits she made to Fremont Urgent Care and to a Kaiser facility located in Milpitas. However, the WCJ explained in his Opinion on Decision that he did add up mileage for the Kaiser and Fremont Urgent Care visits, as set forth in applicant's exhibits 1 and 3 (admitted into evidence at trial on June 21, 2019). For the injuries in both case numbers, the WCJ even concluded that defendant actually paid more mileage than applicant was entitled to, and again this is according to applicant's own trial exhibits 1 and 3.

Applicant did not explain why new mileage logs and psychological counseling records were not produced earlier.

Favours Defendant prevailed

Lack of explanation for late evidence submission led to rejection of new evidence and affirmation of WCJ's findings.

From the decision · page 3Here, contrary to Rule 10974, applicant does not explain why the mileage logs attached to her petition for reconsideration could not reasonably have been discovered or produced before submission of her case for decision. Applicant also does not explain why the attached mileage logs should be considered true and correct, as opposed to the mileage reflected in the log of Kaiser visits and Fremont Urgent Care visits presented by applicant herself at trial, in exhibits 1 and 3. In the absence of any such explanations, applicant's presentation of new evidence of mileage in her petition for reconsideration is not persuasive evidence sufficient to overturn the WCJ's findings. (Lab. Code, § 3202.5.)

No substantial medical evidence or finding of compensable psychiatric injury related to physical injuries.

Favours Defendant prevailed

Without such evidence, no legal basis existed to award mileage for psychological counseling.

From the decision · page 3There is no stipulation or finding of record in the instant matter that applicant sustained an industrial injury to her psyche. Likewise, there is no substantial medical evidence that she sustained such an injury or that she required psychological counseling to cure or relieve the effects of her physical injuries. We note that applicant was evaluated by Dr. Gupta for her neurological

Did not evaluate applicant for psychiatric complaints and did not offer an opinion on industrial psychiatric injury or need for psychological counseling related to physical injuries.

From the decision · page 4complaints, and two of the doctor's reports were admitted into evidence at trial on June 21, 2019. (Defense exhibits C and D.) Even though Dr. Gupta is a specialist in both psychiatry and neurology, the doctor did not evaluate applicant for her psychiatric complaints and the doctor did not offer an opinion as to whether she sustained an industrial injury to her psyche. Dr. Gupta also did not state that applicant needed psychological counseling to cure or relieve the effects of her physical injuries. Accordingly, there is no legal basis to award reimbursement for mileage accrued by applicant in attending the psychological counseling sessions reflected in the attachments to her petition for reconsideration.

California Labor Code

Labor Code section 5900

Governs medical mileage reimbursement entitlement.

From the decision · page 2Defendant filed an answer. We did not receive a Report and Recommendation from the WCJ. Based on our review of the record and applicable law, we conclude that the WCJ correctly found that applicant is not entitled to further reimbursement of medical mileage expenses in ADJ1082010 or ADJ1958378. We also note that the penalties assessed by the WCJ have not been challenged upon reconsideration. Therefore, we will affirm the WCJ's decision in its entirety. Reviewing applicant's petition for reconsideration as paginated in the Electronic Adjudication Management System (EAMS), applicant apparently alleges at pages five through eight that she is entitled to additional mileage for injury-related medical treatment visits she made to Fremont Urgent Care and to a Kaiser facility located in Milpitas. However, the WCJ explained in his Opinion on Decision that he did add up mileage for the Kaiser and Fremont Urgent Care visits, as set forth in applicant's exhibits 1 and 3 (admitted into evidence at trial on June 21, 2019). For the injuries in both case numbers, the WCJ even concluded that defendant actually paid more mileage than applicant was entitled to, and again this is according to applicant's own trial exhibits 1 and 3.

California Labor Code

Labor Code section 3202.5

Supports rejection of new evidence without explanation for late submission.

From the decision · page 3Here, contrary to Rule 10974, applicant does not explain why the mileage logs attached to her petition for reconsideration could not reasonably have been discovered or produced before submission of her case for decision. Applicant also does not explain why the attached mileage logs should be considered true and correct, as opposed to the mileage reflected in the log of Kaiser visits and Fremont Urgent Care visits presented by applicant herself at trial, in exhibits 1 and 3. In the absence of any such explanations, applicant's presentation of new evidence of mileage in her petition for reconsideration is not persuasive evidence sufficient to overturn the WCJ's findings. (Lab. Code, § 3202.5.)

California Code of Regulations, title 8, section 10974

WCAB Rule 10974

Requires explanation for newly discovered evidence in reconsideration petitions.

From the decision · page 3the...exhibits could not reasonably have been discovered or produced before submission of the case. A petition for reconsideration sought upon these grounds may be denied if it fails to meet the requirements of this rule, or if it is based upon cumulative evidence." (Cal. Code Regs., tit. 8, § 10974, WCAB Rules of Practice and Procedure.)

California Labor Code

Labor Code section 3208.3(b)(1)

Requires proof that psychiatric injury is predominantly caused by employment to establish compensability.

From the decision · page 3In addition, we note that Labor Code section 3208.3(b)(1) provides: "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury."

Applicant's own trial exhibits showed mileage paid exceeded mileage owed.

From the decision · page 2Defendant filed an answer. We did not receive a Report and Recommendation from the WCJ. Based on our review of the record and applicable law, we conclude that the WCJ correctly found that applicant is not entitled to further reimbursement of medical mileage expenses in ADJ1082010 or ADJ1958378. We also note that the penalties assessed by the WCJ have not been challenged upon reconsideration. Therefore, we will affirm the WCJ's decision in its entirety. Reviewing applicant's petition for reconsideration as paginated in the Electronic Adjudication Management System (EAMS), applicant apparently alleges at pages five through eight that she is entitled to additional mileage for injury-related medical treatment visits she made to Fremont Urgent Care and to a Kaiser facility located in Milpitas. However, the WCJ explained in his Opinion on Decision that he did add up mileage for the Kaiser and Fremont Urgent Care visits, as set forth in applicant's exhibits 1 and 3 (admitted into evidence at trial on June 21, 2019). For the injuries in both case numbers, the WCJ even concluded that defendant actually paid more mileage than applicant was entitled to, and again this is according to applicant's own trial exhibits 1 and 3.

Applicant did not explain why new mileage logs and psychological counseling records were not produced earlier.

From the decision · page 3Here, contrary to Rule 10974, applicant does not explain why the mileage logs attached to her petition for reconsideration could not reasonably have been discovered or produced before submission of her case for decision. Applicant also does not explain why the attached mileage logs should be considered true and correct, as opposed to the mileage reflected in the log of Kaiser visits and Fremont Urgent Care visits presented by applicant herself at trial, in exhibits 1 and 3. In the absence of any such explanations, applicant's presentation of new evidence of mileage in her petition for reconsideration is not persuasive evidence sufficient to overturn the WCJ's findings. (Lab. Code, § 3202.5.)