ADJ10546340 · November 14, 2022

Dr. Sherman's reports were not based on complete records and thus did not constitute substantial evidence; the record must be further developed including personnel and hospital records; the Labor Code section 5402 presumption applicability must also be determined.

From the decision · page 4Here, Dr. Sherman repeatedly requested that he be provided the Mission Community Hospital treatment records and applicant's personnel records including witness statements. Absent his review of those records, his reports are not based on pertinent facts and an accurate history, so they do not constitute substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

Dr. Sherman's psychiatric reports lacked review of personnel and hospital records, making them not substantial evidence.

Favours Applicant prevailed

Without complete records, the medical evidence was insufficient to support a compensability finding.

From the decision · page 4Here, Dr. Sherman repeatedly requested that he be provided the Mission Community Hospital treatment records and applicant's personnel records including witness statements. Absent his review of those records, his reports are not based on pertinent facts and an accurate history, so they do not constitute substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

No claim form or denial notice in evidence to determine if Labor Code section 5402 presumption applies.

Favours Applicant prevailed

The presumption of compensability under section 5402 could not be assessed without this evidence.

From the decision · page 4Our review of the trial record indicates there is no claim form in evidence, nor is there a denial notice in evidence. As such, there is no factual basis for determining if liability was "rejected within 90 days" of the claim form being filed. In turn, there is no basis for determining if the compensable injury presumption is applicable and/or whether it has been rebutted. Therefore, upon return of this matter, the record must also be further developed regarding the Labor Code section 5402 presumption.

Applicant sustained psychiatric injuries arising out of and occurring in the course of employment, but reports lacked complete records and were not substantial evidence.

Reports were incomplete without personnel and hospital records, so not substantial evidence.

From the decision · page 1Applicant contends that the October 14, 2021, report from psychiatric qualified medical examiner (QME) Dmitriy L Sherman, M.D., is not substantial evidence regarding the issue of whether applicant sustained a psychiatric injury AOE/COE, and that "If injury is found it will be compensable under Labor Code 5402."

Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)

To determine compensability of psychiatric injury, the WCJ must apply the four-part Rolda test considering actual events, predominant cause, lawful personnel actions, and substantial cause.

The decision explains the Rolda test and requires medical evidence for causation and substantial cause determinations.

From the decision · page 3The WCJ, after considering all the medical evidence, and the other documentary and testimonial evidence of record, must determine: (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination; (2) if so, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires medical evidence; (3) if so, whether any of the actual employment events were personnel actions that were lawful, nondiscriminatory and in good faith, a factual/legal determination; and (4) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a "substantial cause" of the psychiatric injury, a determination which requires medical evidence. Of course, the WCJ must then articulate the basis for his or her findings in a decision which addresses all the relevant issues raised by the criteria set forth in Labor Code section 3208.3. (Rolda v. Pitney Bowes (Rolda) (2001) 66 Cal.Comp.Cases 241, 247 (Appeals Board en banc)

Labor Code section 5402

Labor Code section 5402 presumes compensability if liability is not rejected within 90 days after claim filing, rebuttable only by evidence discovered after 90 days.

The decision notes the absence of claim form and denial notice evidence, requiring further development on this presumption.

From the decision · page 4It is also important to note that pursuant to Labor Code section 5402: If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period. (Lab. Code, § 5402(b).)

Dr. Sherman repeatedly requested personnel and hospital records which were not provided, undermining the completeness of his reports.

From the decision · page 4Here, Dr. Sherman repeatedly requested that he be provided the Mission Community Hospital treatment records and applicant's personnel records including witness statements. Absent his review of those records, his reports are not based on pertinent facts and an accurate history, so they do not constitute substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

No claim form or denial notice in evidence to determine applicability of Labor Code section 5402 presumption.

From the decision · page 4Our review of the trial record indicates there is no claim form in evidence, nor is there a denial notice in evidence. As such, there is no factual basis for determining if liability was "rejected within 90 days" of the claim form being filed. In turn, there is no basis for determining if the compensable injury presumption is applicable and/or whether it has been rebutted. Therefore, upon return of this matter, the record must also be further developed regarding the Labor Code section 5402 presumption.