California Labor Code § 5906

Determinative passage · p.5"[I]n order to ensure reliance on substantial evidence, and a complete adjudication of the issues consistent with due process," the WCJ and the Appeals Board both have a duty to further develop the record where there is an absence of, or insufficient evidence to determine the issues raised for trial. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal. App.4th 389, 393-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see Lab. Code, § 5701 and 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 139 (Appeals Board en banc).) Indeed, the Appeals Board has a constitutional mandate to "ensure substantial justice in all cases," and is therefore "clearly permitted" to admit evidence even after the discovery cut-off

Remand required for further development of the record on employment dates and status.

Determinative passage · p.6It is also well established that the Appeals Board has the discretionary authority to develop the record when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 9 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Under both the California and United States Constitutions, all parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [97 Cal Rptr. 2d 852, 65 Cal.Comp.Cases 805].) A fair hearing is "... one of `the rudiments of fair play' assured to every litigant..." (Id. at p. 158.) As stated by the California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission... must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p.

The record was incomplete on non-orthopedic claims; further development was ordered to ensure due process and a fair hearing.

Determinative passage · p.7Additionally, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d);Lamb v. Workmen's Comp. Appeals Bd.(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310];Garza v. Workmen's Comp. Appeals Bd.(1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500];LeVesque v. Workmen's Comp. Appeals Bd.(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701, 5906;Tyler v. Workers' Comp. Appeals Bd.(1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; seeMcClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision inMcDuffie v.

The WCJ and WCAB agreed that the psychiatric medical evidence was insufficient and ordered development of the record for psychiatric injury.

Determinative passage · p.2Whether a report is substantial evidence goes to the weight of the evidence, not the admissibility. (Cal. Code Regs., tit. 8, § 10682(c).) Thus, upon finding a report insubstantial, the report is not stricken from the record. The sole question here is how to develop the record further to ensure that the decision of the Appeals Board is based upon substantial evidence. To that extent, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v.

The Board affirmed the WCJ's order to develop the record with a replacement QME due to insubstantial medical evidence.

Determinative passage · p.19The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[Labor Code sections] 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.)

The Appeals Board exercised its discretionary authority to develop the record due to insufficient medical evidence.

Determinative passage · p.6The Legislature enacted sections 5701 and 5906 to implement this constitutional mandate. (Kuykendall, supra, 79 Cal.App.4th at p. 403.) Section 5701 gives the Appeals Board or any WCJ the authority to take additional medical evidence at any time:

The Board applied these statutes to grant reconsideration and order further development of the record to address all injuries described by applicant.

Determinative passage · p.6Additionally, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Bd. en banc); see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.)

The WCAB may develop the record to ensure substantial evidence and due process.

Determinative passage · p.5The WCJ's Report observes that any decision, award or order of the Appeals Board must be supported by substantial evidence in light of a review of the entire record. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].) Following a review of the entire record, the WCJ recommends that we grant reconsideration and return the matter to the trial level for development of the medical and medical-legal record with respect to the nature and extent of the injury.

WCAB granted reconsideration to develop medical record on nature and extent of injury.