ADJ12245760 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by Applicant, reviewed by WCAB panel after WCJ decision

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.

AOE/COEDefendant prevailedneck · right arm · right shoulder

Applicant failed to prove injury AOE/COE; no medical evidence supported cumulative trauma or specific injury; applicant had ample time to obtain evidence but did not; petition for reconsideration denied on merits.

From the decision · page 3Applicant claimed injury AOE/COE to his neck, right arm, and right shoulder, while employed during the period from 1/1/08 through 1/8/19 as a mechanic, at Gonzales, California, by BC Labor Contractors, Inc., then insured by Star Insurance Company.

The facts that decided it

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

Applicant failed to provide medical evidence supporting injury AOE/COE or cumulative trauma claim.

The rules the panel named

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

Labor Code sections 5900(a), 5903; California Code of Regulations, title 8, section 10605(a)(1)

Labor Code section 5900(a), 5903, and Cal. Code Regs., tit. 8, 10605(a)(1) regarding timeliness of petition for reconsideration.

The Board found the petition timely filed due to service rules extending filing time.

From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. There are 20 days allowed within which to file a petition for reconsideration from a "final" decision. (Lab. Code, § 5900(a), 5903.) This time is extended by 10 calendar days if service is made to an address outside of California but within the United States. (Cal. Code Regs., tit. 8, § 10605(a)(1).) While applicant and her attorney received service of the decision within California, defendant was served at an address outside of California. Accordingly, and to observe due process for all parties, we interpret Rule 10605 as extending the time to file for all parties being served. Nevertheless, while we find the petition timely we deny it on the merits for the reasons stated in the WCJ's Report.

Labor Code sections 3202.5, 5502(d)(3)

Labor Code section 3202.5 and 5502(d)(3) regarding evidentiary burden and admissibility of evidence after settlement conference.

Applicant failed to meet evidentiary burden and did not obtain evidence timely; evidence after MSC inadmissible.

From the decision · page 5Applicant had had ample time to obtain the medical evidence necessary to prove his case and to file a second Application alleging a specific injury. He did not. "As the Board concluded, Labor Code section 3202.5 expressly provides that the Labor Code section 3202 rule of liberal construction shall not relieve a party from meeting the evidentiary burden of proof by a preponderance of the evidence." (Rogers v. W.C.A.B. (1985) 172 Cal.App.3d 1195, 1202; 50 Cal. Comp. Cases 550.) Applicant also failed to demonstrate that the evidence he seeks "was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." Without such a showing, any evidence not disclosed or obtained after the MSC shall be inadmissible. (Lab. Code, § 5502(d)(3).)

ADJ12245760 · April 11, 2022

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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