ADJ11372274 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration of the Findings and Award issued by the WCJ on December 15, 2020

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/COEDefendant prevailedpsychiatric · head · neck · back · shoulders · stomach · respiratory system

The psychiatric QME report by Dr. Perry Maloff was found to be substantial evidence that the applicant did not sustain injury AOE/COE, supported by detailed history, examination, and psychological testing, and the applicant's contrary factual assertions were found inaccurate.

From the decision · page 1Applicant contends that the report from psychiatric qualified medical examiner (QME) Perry Maloff, M.D., is not substantial evidence that applicant did not sustain injury AOE/COE.

The facts that decided it

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

Dr. Perry Maloff's psychiatric QME report concluded no work-related aggravation of psychiatric condition and apportioned 100% of disability to nonindustrial factors.

The rules the panel named

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

Labor Code section 5902

Petitions for reconsideration must be verified under Labor Code section 5902, but failure to verify is not jurisdictional and may be excused at the Board's discretion.

The petition was not verified but the Board exercised discretion to consider it anyway.

From the decision · page 3We first note that the Petition is not verified. Labor Code section 5902 provides in relevant part: "The petition [for reconsideration] shall be verified upon oath in the manner required for verified pleadings in courts of record...." (Lab. Code, § 5902.) This is a clear and specific statutory requirement that petitions be verified. The Petition in this case is not verified by applicant or her attorney, and for that reason, it does not comply with the requirements of Labor Code section 5902. Although we will generally dismiss unverified petitions for reconsideration, verification is not a jurisdictional requirement and the failure to verify the petition is not a jurisdictional defect which mandates dismissal. (Wings West Airlines v. Workers' Comp. Appeals Bd. (Nebelon) (1986) 187 Cal.App.3d 1047, 1055 [51 Cal.Comp.Cases 609, 614]; Mullane v. Industrial Acc. Com. (1931) 118 Cal.App.

Labor Code section 5952(d)

Awards must be supported by substantial evidence, which requires a well-reasoned medical opinion based on adequate history and examination.

Dr. Maloff's report was found to be substantial evidence on injury AOE/COE issue.

From the decision · page 3It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (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. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence

ADJ11372274 · March 11, 2021

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

What proof carried it

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