ADJ8439665 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by applicant on May 8, 2023, denied for failure to make specific citations to the record and on the merits adopting the WCJ report.

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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.

Substantial evidence / credibilityDefendant prevailedbrain/neurological system/cognitive · psyche · vestibular/ear/vertigo · speech and sleep

The petition failed to make specific citations to the record as required by WCAB Rule 10945(b) and case law, and the WCJ's credibility determinations were supported by substantial evidence, so the petition was denied.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration filed by applicant on May 8, 2023, and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, the petition fails to make specific citations to the record and will be denied.

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.

Cal. Code Regs., tit. 8, 10945(b)

WCAB Rule 10945(b) requiring specific references to the record in petitions for reconsideration

Petition denied for failure to comply with this rule.

From the decision · page 2II. WCAB Rule 10945(b) provides, in relevant part: "[e]very petition for reconsideration... shall support its evidentiary statements by specific references to the record." (Cal. Code Regs., tit. 8, § 10945(b), emphasis added.) Rule 10945(b) then goes on to specify how references to the record must be made. The requirements of Rule 10945 regarding specific references to the record are consistent with case law regarding proper citation to the record in appellate proceedings. (Flores v. Cal. Dept. of Corrections and Rehab. (2014) 224 Cal.App.4th 199, 204 ("an appellant must do more than assert error and leave it to the appellate court to search the record... to test his claim"); City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 ("[r]ather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal when it is not supported by accurate citations to the record"); Salas v. Cal. Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1074 ("[w]e are not required to search the record to ascertain whether it contains support for [plaintiffs'] contentions"); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 ("[t]he appellate court is not required to search the record on its own seeking error" and "[i]f a party fails to support an argument with the necessary citations to the record,...

Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

Due process requires notice before depriving a party of a substantial right

Time to act on petition tolled due to Appeals Board error in failing to act within 60 days.

From the decision · page 1I. A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.)1 However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice..." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision, holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Id. at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's

ADJ8439665 · September 18, 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

What proof carried it

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