ADJ12256911 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; WCJ decision of September 30, 2024 rescinded; matter returned to WCJ for further proceedings and new decision

Petition for reconsideration granted, prior WCJ decision rescinded, case returned to WCJ for further proceedings consistent with opinion

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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.

Reconsideration / removalApplicant prevailed

The Appeals Board timely acted on the petition for reconsideration within the 60-day period required by Labor Code section 5909, and the medical record was found deficient, requiring further development consistent with McDuffie.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the WCJ for further proceedings and decision consistent with this opinion.

The facts that decided it

The rules the panel named

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

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of case transmission to the Appeals Board.

The Appeals Board acted timely on the petition within the 60-day period.

From the decision · page 1I. Former Labor Code section 59092 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Procedure for developing a deficient medical record includes supplementation by previously reporting physicians, then agreed medical evaluator (AME), then appointment of a regular physician if necessary.

The medical record was deficient and further development was ordered consistent with McDuffie.

From the decision · page 3II. We add here that after return, the parties can agree upon an Agreed Medical Evaluator (AME). As discussed in the WCJ's Report, McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 142 (Appeals Board en banc), the preferred procedure for developing a deficient record is to first allow supplementation of the medical record by the physicians who have already reported in the case. The McDuffie decision went on to state that "[i]f the use of physicians new to the case becomes necessary, the selection of an AME by the parties should be considered at this stage in the proceedings." (Id.) Thereafter, "if none of the procedures outlined above is possible, the WCJ may resort to the appointment of a regular physician, as authorized by Labor Code section 5701." (Id. at pp. 142-143.) Thus, we emphasize that the parties may agree to an AME before they proceed with the appointment of a regular physician pursuant to section 5701.

ADJ12256911 · January 6, 2025

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