ADJ10215937 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted, prior Findings and Award rescinded, matter returned to WCJ for further proceedings

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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.

Psyche AOE/COERemandedpsyche

The psychiatric injury issue was remanded because the psychiatric QME report was not admitted into evidence, and the summary by a different specialty QME was not substantial evidence.

From the decision · page 3We agree with the WCJ that, "The contents of evidence not put into evidence cannot be a basis for a decision." (Report, p. 5.) As noted, the report from Dr. Botros was not offered or admitted into evidence, thus it cannot be considered. Further, a doctor's summary of a report from another doctor, who specializes in a different area of medical practice, does not constitute substantial evidence as to the subject matter of the summarized report. Thus, the September 10, 2020 report from internal medicine-rheumatology specialist Dr. Fisher (Court Exh. V), is not

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5952(d)

Any award, order, or decision of the Appeals Board must be supported by substantial evidence.

The record did not contain substantial evidence on the psychiatric injury issue because the psychiatric QME report was not admitted into evidence.

From the decision · page 4Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) The record in this matter, as it now stands does not contain substantial evidence upon which a finding regarding the issue of whether applicant sustained a psychiatric injury AOE/COE can be made. The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to 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].) Upon return, we recommend that the parties develop the record so that a proper determination of the issues submitted for decision can be made.

Labor Code sections 5701, 5906

The Appeals Board has discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to fully adjudicate the issues.

The matter was returned to the WCJ to develop the record and make a proper determination on the psychiatric injury issue.

From the decision · page 4Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) The record in this matter, as it now stands does not contain substantial evidence upon which a finding regarding the issue of whether applicant sustained a psychiatric injury AOE/COE can be made. The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to 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].) Upon return, we recommend that the parties develop the record so that a proper determination of the issues submitted for decision can be made.

ADJ10215937 · February 12, 2021

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