Calif Edition Banner March 2010
Vol 2, Issue 21

Find Solutions & Strategies                               May 23, 2011

Apple BiteDeveloping the Record
Only one bite per apple
In This Issue
* RECENT PANEL DECISION: Insurance Coverage
* NEWS HEADLINES: WCIRB declines midyear filing

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


The next issue of this free eNewsletter will go out Tuesday, May 31. Have a safe Memorial Day weekend!
American Ribbon 
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

Laughlin, Falbo, Levy & Moresi LLP and Sedgwick LLP present



A free seminar series on recent developments in employment and workers' compensation law since the passage of SB 899 in 2004, as well as return to work/interactive process obligations.


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Presentation Topics:

- Some Like it Hot: Top 10 Hot Button Employment & Labor Issues in Workers' Compensation

- Monkey Business: Stopping Fraudulent Workers in Their Tracks

- Something's Got to Give: The Spiraling Costs and Endless Litigation of Ogilvie and Almaraz et al. When Is Enough Enough?

- The Misfits: Jim Pettibone and Barry Lesch Round Up and Corral Recent Case Law


Breakfast: 8 - 8:30 a.m.

Seminar: 8:30 a.m. - 12:30 p.m.


San Diego: Thurs., June 9, 2011

Riverside: Thurs., June 23, 2011


developing the record

One of the hottest issues in workers' compensation practice today is the conflict between a judge's duty to close discovery at the Mandatory Settlement Conference (MSC) (Lab. Code § 5502(e)(3) [formerly § 5502(d)(3), prior to 1/1/2003] and the judge's duty to develop the record to ensure all decisions are based on substantial evidence (Lab. Code §§ 5701, 5906].


For over a decade, the WCAB and the DCA have grappled with how to balance these three code sections. A body of case law has developed providing varying results depending on the circumstances, including Telles Transport, Inc. v. WCAB (Zuniga) (2001) 66 Cal. Comp. Cases 1290 (5th DCA), McDuffie v. LA Cty Met Transit Authority (2002) 67 Cal. Comp. Cases 138 (WCAB en banc), and Costa v. Hardy Diagnostic (2006) 71 Cal. Comp. Cases 1797 (WCAB en banc)], among others.


The overall message from the case law seems to be that the Workers' Compensation Judge (WCJ) has the power to allow a party to develop the record after discovery has closed at the MSC, but only under limited circumstances, and in a very specific manner, as set forth in the McDuffie en banc decision.


However, what about the scenario where there as been no MSC and it is the WCJ who wants to obtain additional evidence, and not a party to the case? What rules would apply then? According to the panel decision of Rivas v. Posada Whittier, 2010 Cal. Wrk. Comp. P.D. LEXIS 114 (March 15, 2010) [see also Rivas v. Posada Whittier, 2010 Cal. Wrk. Comp. P.D. LEXIS 384 (June 7, 2010) (WCAB affirmed its 3/15/2010 decision)], the same Labor Code sections apply as when there has been an MSC and it is a party to the case who is seeking to supplement the evidence. Read more. subscribers can link to the cases and statutes cited in this article. Be sure you're already logged onto your account.

recent panel decision - sneak preview

Each week we report one or two panel decisions that we're considering for the LexisNexis® services:
NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.


Insurance Coverage; Contribution and Reimbursement. WCAB upheld arbitrator's finding that SCIF provided workers' compensation coverage to defendant on 9/26/2006, date applicant/carpenter/laborer suffered injuries to various body parts while employed by "Shelby Framing," and was obligated to reimburse co-defendant CCN one half costs paid by CNN for temporary disability, permanent disability, and medical treatment, when WCAB held that evidence supported arbitrator's determination that, even though an employer is only supposed to have one workers' compensation carrier at a time, in this case both SCIF (through Mr. Morales, as an individual) and CCN  (through Shelby Development, Inc.) were providing workers' compensation coverage for "Shelby Framing" (a fictitious business name) on date of applicant's injury and for that reason were both equally liable to him for benefits, that insurance fraud perpetrated by Mr. Morales against SCIF and CNN to obtain coverage did not relieve SCIF of its share of liability for applicant's industrial injury, and that CNN's claim for contribution was not barred by doctrine of collateral estoppel. See Marino panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community
Cal Comp CasesCal. Comp. Cases May Advanced Postings (5/20/2011). users can link to this week's advanced postings of "writ denied" cases to read the complete headnotes and case summaries. Read it.  





Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (5/19/2011). Read it.

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citeability of panel decisions

CITEPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. subscribers can link to the cases cited above.

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What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
How you'll get it: (1) Word document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on; and (2) Print version, which can be stored in a binder.
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developing the record, continued...

AppleRivas, a housekeeper for an assisted living facility, filed a cumulative trauma claim ending Sept. 18, 2007, alleging industrial injury to her bilateral upper extremities, neck and psyche. Her attorney filed a DOR on Jan. 5, 2009. The initial priority conference was continued to May 28, 2009, at which time the parties agreed to set the matter for an AOE/COE trial on July 1, 2009.


At that trial, applicant offered into evidence the psych report of QME Dr. Kauss, who determined that Rivas was suffering from four psychiatric disorders. He concluded that "the industrial factors are predominant as to all causes combined of the psychiatric injury," thereby meeting the applicable threshold standard for psych injuries of Lab. Code § 3208.3. The defendant objected to admissibility and reliance on Dr. Kauss' report, claiming it did not constitute substantial evidence for two reasons:


1. Dr. Kauss indicated in his report that he looked forward to reviewing applicant's medical records "when they become available."

2. Although Rivas told Dr. Kauss she had no "legal history," she had three criminal misdemeanor convictions in 1990, 1991, and 1992.


The WCJ determined in his F&A of Dec. 17, 2009, that Rivas suffered a CT to her bilateral upper extremities and neck, but deferred the issue of injury to her psyche. The WCJ concluded that the report of Dr. Kauss did not constitute substantial evidence since it was not based on a complete record. The WCJ ordered the record be developed to allow Dr. Kauss to review the applicant's medical records and to issue a supplemental report. The WCJ claimed that the Lab. Code § 5502(e)(3) closure of discovery at MSC rule did not apply, because this was an AOE/COE priority hearing. There never was an MSC. So discovery was never closed per Lab. Code § 5502(e)(3).


The defendant filed a Petition for Reconsideration from this determination. He argued that the psych issue should not have been deferred for development of the record, as applicant had failed her burden of proof at trial on that issue. The WCAB granted the Petition and reversed the WCJ. The Commissioners agreed with the WCJ that the report of Dr. Kauss did not constitute substantial evidence, but they saw no reason for the WCJ to develop the record on that issue. They relied on the Telles Transport case cited above and held that the applicant should have made sure Dr. Kauss' report constituted substantial evidence prior to filing a DOR.


It should be noted that the DOR form, DWC - CA Form 10250, includes the following language, "Declarant states under penalty of perjury that he or she is presently ready to proceed to hearing on the issues below and has made the following specific genuine and good faith efforts to resolve the dispute(s) listed below." Therefore, anyone who signs such a document is stating under penalty of perjury that they believe they have substantial evidence to sustain their burden of proof at trial.


Once the applicant's attorney had read Dr. Kauss' report, he was put on notice that he did not have substantial evidence to sustain his burden of proof at trial, at least not on the issue of psychiatric injury.


Dr. Kauss had prepared his report without reviewing applicant's medical records. In order for Dr. Kauss' conclusion on industrial causation to constitute substantial evidence, he would need to review applicant's records and issue a supplemental report. According to the WCAB, applicant's attorney had plenty of opportunities to obtain this supplemental report prior to filing his DOR. However, no one is allowed to obtain additional evidence after a trial has begun, unless they can establish that evidence could not have been previously obtained.


The moral of this story...Make sure your medical reports meet the substantial evidence test before you file your DOR and state under penalty of perjury that you are ready to proceed to trial. And make sure your evidence meets your burden of proof, because you may not get a second chance.

Any information or opinion contained in this commentary are not necessarily endorsed by LexisNexis or its affiliates or by the LexisNexis editorial consultants who review panel decisions.

© Copyright 2010 LexisNexis. All rights reserved. This article was excerpted from a commentary that appeared in the October 2010 issue of California WCAB Noteworthy Panel Decisions Reporter.

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enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to [email protected].

May 16, 2011

May 9, 2011

May 2, 2011

April 25, 2011

April 20, 2011 (Special Alert)

April 18, 2011

April 11, 2011 (Special Alert)

April 11, 2011

April 4, 2011

March 28, 2011

March 21, 2011

March 17, 2011 (Special Alert)

March 14, 2011

March 7, 2011

February 28, 2011
February 21, 2011
February 14, 2011
February 7, 2011
January 31, 2011

January 24, 2011 (addendum)
January 24, 2011 

January 17, 2011 

January 10, 2011 

January 3, 2011



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