ADJ10280441 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board affirmed the May 2, 2023 Findings and Award, denying defendant's Petition for Reconsideration.

Defendant sought reconsideration of the May 2, 2023 Findings of Fact and Award by the WCJ, which found applicant sustained industrial injury to his psyche. The WCJ prepared a Report and Recommendation on Petition for Reconsideration recommending denial of the petition.

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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/COEApplicant prevailedpsyche

The WCJ found that the applicant sustained an industrial psychiatric injury and that the defendant did not meet its burden to prove the injury was substantially caused by lawful, nondiscriminatory, good faith personnel action under Labor Code section 3208.3(h). The WCAB affirmed this finding.

From the decision · page 2In addition to the analysis set forth in the WCJ's Report, we observe the following. Section 3208.3 provides, in relevant part:

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

PTPRelied upon · psychology

Found applicant sustained industrial psychiatric injury to psyche; medical reports dated July 27, 2017 and October 22, 2019 admitted into evidence and relied upon.

The WCJ found Dr. Flores' medical reporting substantial medical evidence and relied on it to find injury AOE/COE to applicant's psyche.

From the decision · page 5DISCUSSION Medical reports from Nelson Flores, Ph.D., dated July 27, 2017 and October 22, 2019 (Exhibits 1 and 2):

QMERejected · psychiatry

Issued two supplemental reports but opinions were found not substantial medical evidence due to lack of explanation and failure to comply with WCJ's order for one report.

The WCJ found Dr. Dorsey's opinions not substantial medical evidence and did not rely on them.

From the decision · page 8Dr. Dorsey's Opinions Are Not Substantial Medical Evidence: Defendant argued that this WCJ should not have relied on Dr. Flores' medical reporting as

AMEGiven great weight · orthopedics

Did not find any orthopedic/physical injury in report dated July 18, 2017.

The WCJ considered Dr. Newton's report but it did not support physical injury claims.

From the decision · page 8Despite the opportunity to review all of the reports and/or records in this case, including the AME report from Peter Newton, M.D., dated July 18, 2017 (Joint Exhibit Z), who did not find any orthopedic/physical injury, and Dr. Flores' July 27, 2017 and October 22, 2019 reports (Exhibits 1 and 2), Dr. Dorsey still stood by his opinion apportioning 80% of all causes to cumulative trauma physical injuries without explaining how and why (Joint Exhibit Y, Exhibits C and D). It is important to note that the latter two reports (Exhibits C and D) were issued after this WCJ's Order developing the record. Dr. Dorsey's opinions are still not substantial medical evidence. This WCJ did fulfill her duty to supplement the record when the record was lacking, and

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Defendant failed to rebut presumption of proper service of Dr. Flores' reports despite defective service to defense attorney, and no notice of change of third party administrator was given.

From the decision · page 6Based on the October 18, 2017 Proof of Service, it is presumed that the July 27, 2017 report from Dr. Flores was served on the proper address for Tristar. This is a rebuttable presumption and defendant did not provide any evidence to rebut said presumption. As such, the July 27, 2017 report from Dr. Flores (Exhibit 1) is presumed to have been served on Tristar but not on defense attorney of record. On one hand, it is defective service without serving defense attorney pursuant to 8 CCR § 10625. On the other hand, Tristar was properly served with said report so there was no prejudice or denial of due process to defendant. Since applicant bears the burden of proving injury AOE/COE and taking into consideration the spirit of liberal construction, as well as Labor Code § 4060(b), it is found that the July 27, 2017 report from Dr. Flores (Exhibit 1) is admitted into evidence.

Documentary evidencefavours Applicant prevailed

Defendant did not raise the affirmative defense of lawful, nondiscriminatory, good faith personnel action in the Pre-trial Conference Statement or at Trial, thus waived it.

From the decision · page 8it did not contain a Rolda analysis. As indicated in this WCJ's Opinions on Decision, dated May 2, 2023, lawful, non-discriminatory, good faith personnel actions defense under Labor Code § 3208.3(h) is an affirmative defense, with the burden of proof resting on the party who is asserting said defense. The party asserting said defense has the burden of producing substantial medical evidence with a proper Rolda analysis. But defendant's argument herein is moot as defendant did not raise this affirmative defense in the Pre-trial Conference Statement or at Trial, thus it was waived. The lack of a Rolda analysis herein does not render Dr. Flores' medical reporting not reliable and not substantial medical evidence. In fact, this WCJ found Dr. Flores' medical reporting substantial medical evidence and relied on same to find injury AOE/COE to applicant's psyche, as well as award permanent disability, future medical care and attorney's fees.

ADJ10280441 · May 16, 2025

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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