What the panel ordered
The Petition for Reconsideration is granted; the Findings and Order issued on July 14, 2023 is rescinded and substituted; the matter is returned to the trial level for further proceedings consistent with this decision.
Applicant sought reconsideration of the Findings and Order issued on July 14, 2023, which denied injury claims and additional psychiatric panel; the WCJ recommended denial of reconsideration; the Appeals Board granted reconsideration, rescinded the prior Findings and Order, and returned the matter for further proceedings.
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.
The Appeals Board found no bad faith denial of the claim by defendant.
The Appeals Board found that the WCJ erroneously denied the additional psychiatric panel request on grounds of lack of good cause and failure to prosecute the psyche claim, despite the application including a psyche injury claim and no trial framing of dismissal for failure to prosecute; thus, the issues of good cause for an additional panel and psyche injury were deferred for further development.
From the decision · page 7Applicant contends that the WCJ erroneously failed to order an additional panel in psychiatry; and, in consequence, failed to find that applicant sustained injury to her psyche. Specifically, applicant contends that the WCJ effectively denied discovery on the claimed psyche injury by denying her request for an additional panel in psychiatry on the spurious grounds that she had not alleged a psyche injury and not diligently prosecuted her putative psyche claim.
The Appeals Board found defendant did not untimely deny the claim.
The Appeals Board found no injury to upper extremities and shoulders based on the record and rescinded the prior contrary finding.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's application for adjudication included a claim for psyche injury.
Favours Applicant prevailed
This fact contradicted the WCJ's finding that no psyche injury was alleged, undermining the denial of the additional psychiatric panel and supporting reconsideration.
From the decision · page 7But the pleadings record reveals that (1) the application for adjudication did include a psyche injury claim; and (2) the parties did not frame the issue of whether applicant's claim should be dismissed for failure to prosecute as one for trial. (Application for Adjudication, October 24, 2018, p. 9; Minutes of Hearing and Summary of Evidence, January 25, 2023, pp. 2:17-3:13.) It follows that the finding that no good cause exists for an additional panel in psychiatry is without support.
The WCJ denied the additional psychiatric panel request on grounds of lack of good cause and failure to prosecute the psyche claim.
Favours Applicant prevailed
The Appeals Board found this denial unsupported and a denial of due process, requiring deferral and further development of the psyche injury and additional panel issues.
From the decision · page 7Here, as stated in the Opinion on Decision and the Report, the WCJ opined that applicant had not demonstrated good cause for an additional panel in psychiatry because she had not alleged a psyche injury and had otherwise delayed prosecution of her claim. (Opinion on Decision, pp. 2- 3; Report, pp. 1-4.)
Applicant did not diligently pursue psyche treatment or additional panel for 5 years despite PQME recommendation.
Favours Defendant prevailed
This lack of diligence was noted but did not justify denial without due process; it favored defendant on procedural grounds but did not resolve the merits.
From the decision · page 3It is noted that the PQME said applicant should be evaluated by a psyche. Yet for 5 years, she did not. Applicant argued that Dr. Sirujallah should review records. Yet there has been no attempt to send further records to the PQME, again a lack of due diligence for 5 years. Applicant has not treated since the one time evaluation with Dr. Russman on 1/7/19. If there was discovery to be had, it should have been had years ago, not now in 2023. The same argument goes for the request for a panel in psyche. If the applicant's attorney knew about this in 2018 according to the orthopedic PQME's recommendation, and even the treating doctor Russman did not mention it in January 2019, there was no treatment or request for additional panel, petition, DOR, once applicant's attorney filed their petition back on 5/15/2019. It is not the WCAB's job to rescue a case when there has been no action or discovery for years, a lack of due diligence or lack on applicant's part and/or applicant's treating doctor(s) (Russman or any of the other provides like the acupuncturist in March 2019) to request the referral. The psyche was not claimed, it was not mentioned by Dr. Russman, who came AFTER the 2018 PQME in orthopedics, and so I cannot and do not
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.
Did not note any psyche complaints; diagnosed right shoulder pain and vague muscle contracture.
From the decision · page 5The decision was served by the WCAB upon the parties on July 18, 2023. The Applicant filed the Petition for Reconsideration on October 20, 2023. Defendant responded to the Petition on October 30, 2023, also raising the issue of the untimely Petition, regardless of whether the decision was received in July, August or at the latest, September 6, 2023 when defense counsel served it. Even then, it was well beyond 25 days, and therefore the Petition is untimely.... The main issue is Applicant demanding a psychological panel QME as a second panel in the case.... The applicant's DWC-1 Claim Form did not list "psyche". Dr. Russman did not note any psyche complaints, despite the fact her exam was already over 6 months since applicant left her employment and was working at Benchmark. Dr. Russman diagnosed her with right shoulder pain and some vague muscle contracture.... PQME Dr.
Found no injury or impairment; recommended evaluation by a psyche.
From the decision · page 5Sirujallah, in his 8/13/2018, 12/28/2018, and 12/11/2019 reports, found no injury or impairment. He did state that Applicant should be evaluated by a psyche. Yet for 5 years, she did not.... I found that the same lack of due diligence applied to the psyche aspect of the claim and Applicant's argument for a second panel in psyche. If the Applicant or Applicant's attorney knew about the psyche claim since 2018, according to the orthopedic PQME's recommendation, even when the Dr. Russman did not mention it in her one report of 1/7/19, there was still no treatment or request for additional panels after the petition in May 2019.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5903; Cal. Code Regs., tit. 8, 10605; Oliver v. Structural Services (1978) 43 Cal.Comp.Cases 596
A petition for reconsideration must be filed within 20 days of service of the final order, plus 5 days if service is by mail within California.
The Appeals Board found the initial service of the Findings and Order defective and treated the petition as timely.
From the decision · page 6DISCUSSION A petition for reconsideration must be filed and received by the Appeals Board within twenty days of the service of the final order (plus an additional five days if service of the decision is by any method other than personal service, including by mail, upon an address in California). (§ 5903; Cal. Code Regs., tit. 8, § 10605; Oliver v. Structural Services (1978) 43 Cal.Comp.Cases 596.) This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely Petition for Reconsideration. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1076 [65 Cal.Comp.Cases 650, 656]; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1182; Scott v Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 984 [46 Cal.Comp.Cases 1008, 1011]; U.S. Pipe & Foundry Co. v. Industrial Acc.
Cal. Code Regs., tit. 8, 10628
WCAB Rule 10628(a) requires the WCJ to serve the injured employee directly with any final order, decision or award.
The WCJ's designation of defendant's counsel to serve the Findings and Order was defective service.
From the decision · page 6Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549 [27 Cal.Comp.Cases 73, 75-76].) Pursuant to WCAB Rule 10628(a), the WCJ is required to serve the injured employee, regardless of whether or not the employee is represented, with any final order, decision or award issued on a disputed issue and may not designate a party's attorney to serve any such final order, decision or award. (Cal. Code Regs., tit. 8, § 10628.) Here, the record reveals that instead of serving applicant with the F&O, the WCJ designated defendant's counsel, Michael G. McConville of Floyd, Skeren and Kelly, to serve the F&O on all the parties. Because service of the F&O did not comply with WCAB Rule 10628, we consider it defective. Where service or the proof of service is defective, the time to file a petition for reconsideration is measured from the date the party receives the order in question. (Hartford
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449
Due process requires notice and opportunity to be heard before adverse action is taken in workers' compensation proceedings.
The Appeals Board concluded that the applicant was effectively denied due process by the WCJ's denial of the additional psychiatric panel without determining good cause first.
From the decision · page 8determination of the psychiatric panel issue was delayed until the very hearing at which the existence of the psyche injury itself was to be determined, applicant was effectively denied an opportunity to be heard on her claim to discovery on her psyche injury claim--and effectively foreclosed from obtaining certain discovery sought for the purpose of proving her claim without due process. (See Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157§ 158 [97 Cal. Rptr. 2d 852, 65 Cal.Comp.Cases 805] (stating that all parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions; Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789 [32 Cal. Rptr. 2d 293, 59 Cal.Comp.Cases 461]; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 285 Cal. Rptr. 222 [56 Cal.Comp.Cases 537] (finding that due process requires that a party receive notice and an opportunity to be heard before an action adverse to its interest is taken). )
What proof carried it
The evidence the panel weighed, by kind.
Applicant did not diligently prosecute psyche claim or seek additional psychiatric panel for 5 years despite PQME recommendation.
From the decision · page 3It is noted that the PQME said applicant should be evaluated by a psyche. Yet for 5 years, she did not. Applicant argued that Dr. Sirujallah should review records. Yet there has been no attempt to send further records to the PQME, again a lack of due diligence for 5 years. Applicant has not treated since the one time evaluation with Dr. Russman on 1/7/19. If there was discovery to be had, it should have been had years ago, not now in 2023. The same argument goes for the request for a panel in psyche. If the applicant's attorney knew about this in 2018 according to the orthopedic PQME's recommendation, and even the treating doctor Russman did not mention it in January 2019, there was no treatment or request for additional panel, petition, DOR, once applicant's attorney filed their petition back on 5/15/2019. It is not the WCAB's job to rescue a case when there has been no action or discovery for years, a lack of due diligence or lack on applicant's part and/or applicant's treating doctor(s) (Russman or any of the other provides like the acupuncturist in March 2019) to request the referral. The psyche was not claimed, it was not mentioned by Dr. Russman, who came AFTER the 2018 PQME in orthopedics, and so I cannot and do not
Applicant's application for adjudication included a psyche injury claim.
From the decision · page 7But the pleadings record reveals that (1) the application for adjudication did include a psyche injury claim; and (2) the parties did not frame the issue of whether applicant's claim should be dismissed for failure to prosecute as one for trial. (Application for Adjudication, October 24, 2018, p. 9; Minutes of Hearing and Summary of Evidence, January 25, 2023, pp. 2:17-3:13.) It follows that the finding that no good cause exists for an additional panel in psychiatry is without support.
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