Rivas, 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.