What the panel ordered
Petition for reconsideration granted; WCJ's order reopening claims ADJ11548913, ADJ11548920, and ADJ11548921 affirmed and amended to admit Dr. Miller's QME report as evidence of good cause to reopen.
Defendant sought removal of the WCJ's order reopening applicant's claims; the WCAB treated the removal petition as a petition for reconsideration and granted it, affirming the WCJ's order reopening the claims with amendment to admit Dr. Miller's QME report as evidence of good cause to reopen.
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.
The WCJ found good cause to reopen based on Dr. Miller's QME report showing medical evidence of concentration and memory issues and no bad faith by applicant; the WCAB affirmed and amended the order to admit the report.
From the decision · page 8*** 3. Exhibit 2 is admitted in evidence. 4. Based on the evidence presented, it is found that good cause exists to reopen
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant filed a petition to reopen within 10 days of dismissal without prejudice.
Favours Applicant prevailed
Preserves WCAB jurisdiction to reopen claims.
From the decision · page 4An Order Dismissing the above cases, without prejudice, issued on 9/6/2019. Within 10 days, on 9/26/2019, Applicant filed a Petition to Reopen....
Dr. Miller's QME report documents applicant's concentration and memory issues and sleep apnea likely related to employment.
Favours Applicant prevailed
This medical evidence contradicts defendant's claim of bad faith failure to appear and supports good cause to reopen.
From the decision · page 5Here, we have a QME who indicates that the applicant had sleep- related breathing complaints and obstructive sleep apnea related to solvent exposure at his employment. Exh 2 p. 19. The QME documents depression, personality change, headaches, and obstructive sleep apnea. Exh 2 p 19. The QME deferred the "depression, headaches, concentration and memory issues" to formal neuropsychological testing. Exh 2 p. 18. Thus, defendant's claims of bad faith is belied by the medical evidence provided by QME Miller (Exh 2) that applicant had concentration and memory issues. Defendant compelled Applicant's attendance at a medical legal evaluation by Dr. Miller and now objects to the admission of this report.
Defendant was aware of Dr. Miller's QME report and arranged for the medical evaluation.
Favours Applicant prevailed
No prejudice or surprise in admitting the report as evidence of good cause to reopen.
From the decision · page 4Defendant is well aware of the existence of the QME report. The record indicates that defendant filed a DOR for Priority Hearing. At the hearing on March 27, 2019, Defendant sought to compel evaluation of Applicant by Dr. Miller. MOH/SOE 3/27/2019. EAMS69812130. An Order Compelling Attendance at Medical Evaluation by Dr. Miller at a date and time to be arranged by defendant issued. EAMS69812132. The argument raised in open court that "at the time of scheduled AOE/COE trial, there was no QME report to substantiate injuries" is inaccurate. Defendant arranged for Applicant's med/legal evaluation with Dr. Miller. Defendant being aware of the existence of the QME report, there is no prejudice to defendant.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Applicant has concentration and memory issues, sleep-related breathing disorder including moderate obstructive sleep apnea likely industrial, depression, personality change, headaches; recommended formal neuropsychological evaluation and brain MRI.
Dr. Miller's report was admitted as evidence of good cause to reopen and was relied upon to find no bad faith and medical basis for reopening.
From the decision · page 5According to the QME Albert Simpkins, applicant had a work- related injury on 2/21/2018 due to laceration of the middle finger. As to the 9/4/2018, QME Albert Simpkins finds some discrepancy and leaves it to the trier of fact to determine if an injury occurred. Dr. Simpkins finds that Applicant has a combined 24% WPI. Exhibit 1 p. 24.... Applicant was evaluated by QME Miller on 5/29/2019. Over defendant's objection, the report was admitted into Evidence as Exhibit 2. QME Miller, on page 16 states that "there is evidence to support his claims of a sleep-related breather disorder with a documented moderate obstructive sleep apnea." He finds that the sleep apnea is likely industrial. Exh 2 p 17. But what is more important to note that he recommended "formal neuropsychological evaluation and formal brain MRI." Exh 2 p 17- 18.
Evaluated applicant on August 14, 2019; found 24% WPI for finger injury; left to trier of fact to determine injury for September 4, 2018 incident.
Report admitted as evidence of active prosecution of case at dismissal time.
From the decision · page 4There is evidence presented that the QME Albert Simpkins evaluated the Applicant on August 14, 2019. Exhibit 1. Although
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Nolan v WCAB (1977) 70 Cal. App 3d 122; Bland v WCAB (1970) 3 Cal 3d 324
A petition to reopen filed within five years preserves the jurisdiction of the Appeals Board.
Applicant's claims were dismissed without prejudice, so reopening within statutory period preserved jurisdiction.
From the decision · page 4A. JURISDICTION... [T]he dismissal on September 6, 2019 was without prejudice. In Nolan v WCAB (1977) 70 Cal. App 3d 122, the Court of Appeal, stated that when a party files a petition to reopen after a case has been dismissed without prejudice, the request to reopen is a request to have the original claim adjudicated. The WCAB retains its original jurisdiction to adjudicate this claim. Nolan v WCAB 70 Cal. App 3d at 127-129. ["]A petition to reopen filed by a party within five years... preserves the jurisdiction of the Appeals Board." Bland v WCAB (1970) 3 Cal 3d 324, 330.
Labor Code § 5901; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. WCAB (1980) 104 Cal.App.3d 528; Maranian v. WCAB (2000) 81 Cal.App.4th 1068; Capital Builders Hardware, Inc. v. WCAB (2016) 5 Cal.App.5th 658
A petition for reconsideration challenges a final order or decision that determines a substantive right or a threshold issue fundamental to the claim for benefits.
The WCAB treated the removal petition as a petition for reconsideration because the F&O determined a threshold issue of reopening claims.
From the decision · page 6DISCUSSION A petition for reconsideration is the mechanism by which a party may challenge a final order, decision, or award. (Labor Code § 59001.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413]; or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp.
Cal. Code Regs., tit. 8, former § 10561, now § 10421; Labor Code § 5813
WCAB Rule 10421 authorizes monetary sanctions for bad faith conduct but does not support forfeiture of claims for failure to appear at trial.
Defendant's argument that applicant's failure to appear at trial shows bad faith and no good cause to reopen is unsupported.
From the decision · page 6(2005) 127 Cal.App.4th 275, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) Here, defendant filed the Petition seeking removal. However, the F&O determined an issue fundamental to applicant's claims for benefits, i.e., the issue of whether applicant's claims should be reopened. Thus, the F&O constitutes the determination of a threshold issue for which defendant should have sought reconsideration. Accordingly, we will treat the Petition as one for reconsideration and grant the Petition as one for reconsideration. Turning first to defendant's argument that the evidence fails to establish that good cause exists to reopen because applicant willfully failed to appear for the July 29, 2019 trial on the AOE/COE issue, we note that the Petition cites no authority, and we are aware of none, to support the contention that applicant may forfeit his claims based upon his alleged willful failure to appear. Defendant alleges applicant's conduct falls within the definition of bad faith tactics set forth in WCAB Rule 10421, but that rule authorizes the WCJ to impose monetary--and only monetary--
What proof carried it
The evidence the panel weighed, by kind.
Dr. Miller's medical evidence of concentration and memory issues contradicts defendant's claim of bad faith failure to appear at trial.
From the decision · page 5Here, we have a QME who indicates that the applicant had sleep- related breathing complaints and obstructive sleep apnea related to solvent exposure at his employment. Exh 2 p. 19. The QME documents depression, personality change, headaches, and obstructive sleep apnea. Exh 2 p 19. The QME deferred the "depression, headaches, concentration and memory issues" to formal neuropsychological testing. Exh 2 p. 18. Thus, defendant's claims of bad faith is belied by the medical evidence provided by QME Miller (Exh 2) that applicant had concentration and memory issues. Defendant compelled Applicant's attendance at a medical legal evaluation by Dr. Miller and now objects to the admission of this report.
Defendant was aware of Dr. Miller's QME report and arranged for the evaluation, so no prejudice or surprise in admitting the report.
From the decision · page 4Defendant is well aware of the existence of the QME report. The record indicates that defendant filed a DOR for Priority Hearing. At the hearing on March 27, 2019, Defendant sought to compel evaluation of Applicant by Dr. Miller. MOH/SOE 3/27/2019. EAMS69812130. An Order Compelling Attendance at Medical Evaluation by Dr. Miller at a date and time to be arranged by defendant issued. EAMS69812132. The argument raised in open court that "at the time of scheduled AOE/COE trial, there was no QME report to substantiate injuries" is inaccurate. Defendant arranged for Applicant's med/legal evaluation with Dr. Miller. Defendant being aware of the existence of the QME report, there is no prejudice to defendant.
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About this page
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