ADJ10089400 · April 25, 2022

The permanent disability ratings were based on the AME Dr. Pang's thorough and comprehensive evaluation, and there was no basis to disturb the WCJ's conclusion that the stipulations were adequate.

From the decision · page 7Both Stipulations with Request for Award reflect that they were based on ratings of the reporting from the AME Dr. Pang. The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) We will follow the opinions of the AME unless good cause exists to find their opinion unpersuasive. (Ibid.)

Applicant did not meet the burden of proof to show good cause to set aside the stipulations, and the WCJ's credibility determinations were given great weight and supported by substantial evidence.

From the decision · page 5Applicant contends that he did not understand the interpreter when he signed the two Stipulations with Request for Award. As the moving party, applicant has the burden of proof to show by a preponderance of the evidence that he should be relieved from the stipulations he entered into with defendant while he was represented by an attorney. (See Lab. Code, § 5705 [the burden of proof rests upon the party with the affirmative of the issue]; see also Lab. Code, § 3202.5 ["All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence"].)

The WCJ found applicant's testimony that he did not understand the interpreter not credible and gave great weight to the WCJ's credibility determinations.

Favours Defendant prevailed

This credibility finding supported denial of the request to set aside the stipulations.

From the decision · page 5The same interpreter appeared at the October 10, 2019 trial that acted as the interpreter when the two Stipulations with Request for Award were executed. The WCJ stated in his Amended Report that he did not find applicant credible that he did not understand this interpreter when he signed the Stipulations. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)

The permanent disability ratings were based on the AME Dr. Pang's thorough and comprehensive evaluation including two physical examinations and extensive records review.

Favours Defendant prevailed

This supported the conclusion that the stipulations were adequate to compensate applicant for his level of permanent disability.

From the decision · page 7Furthermore, review of Dr. Pang's reporting and deposition transcript show that he conducted a thorough and comprehensive evaluation of applicant including two physical examinations and review of extensive records. He explained the basis for his impairment ratings and for apportionment between the two injuries for applicant's lumbar spine condition to a reasonable medical probability. (See Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

Applicant was represented by an attorney and the stipulations were explained by a certified interpreter at the hearing when the stipulations were signed.

Favours Defendant prevailed

This supported the finding that applicant did not meet the burden to show good cause to set aside the stipulations.

Conducted thorough and comprehensive evaluation including two physical examinations and extensive records review; explained basis for impairment ratings and apportionment to a reasonable medical probability.

From the decision · page 7Furthermore, review of Dr. Pang's reporting and deposition transcript show that he conducted a thorough and comprehensive evaluation of applicant including two physical examinations and review of extensive records. He explained the basis for his impairment ratings and for apportionment between the two injuries for applicant's lumbar spine condition to a reasonable medical probability. (See Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

Lab. Code, 5803

The appeals board has continuing jurisdiction and may rescind, alter, or amend any order, decision, or award for good cause after notice and hearing.

Applied to determine whether there is good cause to set aside the Awards.

From the decision · page 4"The appeals board has continuing jurisdiction over all its orders, decisions, and awards

Lab. Code, 5702

The parties may stipulate facts in writing and the appeals board may make findings and awards based on such stipulations or set the matter for hearing to determine the controversy.

Applied to the stipulations with request for award and their setting aside.

From the decision · page 4The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further investigation necessary to enable it to determine the matter in controversy.

Johnson v. Workmen's Comp. Appeals Bd. (1970) 2 Cal.3d 964

Good cause to set aside an order or stipulations includes mutual mistake of fact, duress, fraud, undue influence, and procedural irregularities.

Used to assess good cause to set aside the stipulations.

From the decision · page 5"Good cause" to set aside an order or stipulations depends upon the facts and circumstances of each case. "Good cause" includes mutual mistake of fact, duress, fraud, undue influence, and procedural irregularities. (Johnson v. Workmen's Comp. Appeals Bd. (1970) 2 Cal.3d 964, 975 [35 Cal.Comp.Cases 362]; Santa Maria Bonita School District v. Workers' Comp. Appeals Bd. (2002) 67 Cal.Comp.Cases 848, 850 (writ den.); City of Beverly Hills v. Worker's Comp. Appeals Bd. (Dowdle) (1997) 62 Cal.Comp.Cases 1691, 1692 (writ den.); Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160, 1170 [50 Cal.Comp.Cases 311] (writ den.).) To determine whether there is good cause to set aside the Awards, the circumstances surrounding their execution and approval must be assessed. (Weatherall, supra, 77 Cal.App.4th at pp. 1118-1121; Robinson v. Workers' Comp. Appeals Bd. (Robinson) (1987) 199 Cal.App.3d 784, 790-792 [52 Cal.Comp.Cases 419]; Huston v. Workers' Comp. Appeals Bd. (Huston) (1979) 95 Cal.App.3d 856, 864-867 [44 Cal.Comp.Cases 798].)

Lab. Code, 5903

Decisions of the Appeals Board must be supported by substantial evidence.

Applied to review adequacy of permanent disability ratings.

From the decision · page 6Applicant also takes issue with whether the permanent disability rating for each Award is adequate. It is acknowledged that decisions of 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].) Thus, we consider whether there is substantial evidence in the record to support the permanent disability ratings in each Award.

Lab. Code, 5952(d)

Decisions of the Appeals Board must be supported by substantial evidence.

Applied to review adequacy of permanent disability ratings.

From the decision · page 6Applicant also takes issue with whether the permanent disability rating for each Award is adequate. It is acknowledged that decisions of 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].) Thus, we consider whether there is substantial evidence in the record to support the permanent disability ratings in each Award.

WCAB Rule 10700(b)

The Workers' Compensation Appeals Board shall inquire into the adequacy of all Compromise and Release agreements and Stipulations with Request for Award, and may set the matter for hearing to take evidence when necessary to determine whether the agreement should be approved or disapproved, or issue findings and awards.

Applied to review adequacy of permanent disability ratings.

DWC Workers' Compensation Appeals Board Policy and Procedural Manual (2013 Revision), section 1.91

Stipulations with Request for Award shall be considered adequate and an Award shall issue if the stipulated level of permanent disability is reasonably within the range of evidence based on the medical reports submitted, medical care is awarded where appropriate based upon the medical reports submitted, and any other issues are adequately resolved by the stipulations.

Applied to review adequacy of permanent disability ratings.

From the decision · page 6Stipulations with Request for Award shall be considered adequate and an Award shall issue if the stipulated level of permanent disability is reasonably within the range of evidence based on the medical reports submitted, medical care is awarded where appropriate based upon the medical reports submitted, and any other issues are adequately resolved by the stipulations.

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

The parties presumably choose an AME because of the AME's expertise and neutrality. The Board will follow the opinions of the AME unless good cause exists to find their opinion unpersuasive.

Applied to give weight to the AME's opinion on permanent disability ratings.

From the decision · page 7Both Stipulations with Request for Award reflect that they were based on ratings of the reporting from the AME Dr. Pang. The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) We will follow the opinions of the AME unless good cause exists to find their opinion unpersuasive. (Ibid.)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

The AME conducted a thorough and comprehensive evaluation including two physical examinations and extensive records review, explaining the basis for impairment ratings and apportionment to a reasonable medical probability.

Applied to support the adequacy of the permanent disability ratings based on the AME's report.

From the decision · page 7Furthermore, review of Dr. Pang's reporting and deposition transcript show that he conducted a thorough and comprehensive evaluation of applicant including two physical examinations and review of extensive records. He explained the basis for his impairment ratings and for apportionment between the two injuries for applicant's lumbar spine condition to a reasonable medical probability. (See Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

WCJ's credibility determinations that applicant did not understand the interpreter were given great weight and supported by substantial evidence

From the decision · page 5The same interpreter appeared at the October 10, 2019 trial that acted as the interpreter when the two Stipulations with Request for Award were executed. The WCJ stated in his Amended Report that he did not find applicant credible that he did not understand this interpreter when he signed the Stipulations. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)