ADJ12256911 · January 6, 2025

The Appeals Board timely acted on the petition for reconsideration within the 60-day period required by Labor Code section 5909, and the medical record was found deficient, requiring further development consistent with McDuffie.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the WCJ for further proceedings and decision consistent with this opinion.

The case was transmitted to the Appeals Board on November 5, 2024, starting the 60-day period for acting on the petition for reconsideration.

Favours Applicant prevailed

This established the deadline for the Appeals Board to act timely on the petition under Labor Code section 5909.

From the decision · page 2Under Labor Code section 5909(a), the Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase "Sent to Recon" and under Additional Information is the phrase "The case is sent to the Recon board."

Service of the Report and Recommendation on November 5, 2024, provided the parties with actual notice of the transmission date and commencement of the 60-day period.

Favours Applicant prevailed

Ensured parties were properly notified as required by Labor Code section 5909(b).

From the decision · page 2Labor Code section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are notified of the accurate date for the commencement of the 60-day period for the Appeals Board to act on a petition. Labor Code section 5909(b)(2) provides that service of the Report and Recommendation shall be notice of transmission.

Applicant's credible testimony was not reflected in the medical reporting by the Panel QME, indicating the medical record was deficient and needed further development.

Favours Applicant prevailed

This justified granting reconsideration and returning the matter for further proceedings.

From the decision · page 6In this matter, the Applicant's credible testimony regarding her allegations of injury were not reflected in the medical reporting provided by the Panel QME. To this end, it is the duty of the Court to clarify the allegations through an additional medical examination. The Court has a duty to develop the record further. This Judge agrees with the Applicant in the Petition for Reconsideration, that this medical record needs to be developed further.

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of case transmission to the Appeals Board.

The Appeals Board acted timely on the petition within the 60-day period.

From the decision · page 1I. Former Labor Code section 59092 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Procedure for developing a deficient medical record includes supplementation by previously reporting physicians, then agreed medical evaluator (AME), then appointment of a regular physician if necessary.

The medical record was deficient and further development was ordered consistent with McDuffie.

From the decision · page 3II. We add here that after return, the parties can agree upon an Agreed Medical Evaluator (AME). As discussed in the WCJ's Report, McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 142 (Appeals Board en banc), the preferred procedure for developing a deficient record is to first allow supplementation of the medical record by the physicians who have already reported in the case. The McDuffie decision went on to state that "[i]f the use of physicians new to the case becomes necessary, the selection of an AME by the parties should be considered at this stage in the proceedings." (Id.) Thereafter, "if none of the procedures outlined above is possible, the WCJ may resort to the appointment of a regular physician, as authorized by Labor Code section 5701." (Id. at pp. 142-143.) Thus, we emphasize that the parties may agree to an AME before they proceed with the appointment of a regular physician pursuant to section 5701.

Applicant's credible testimony regarding her injury allegations was not reflected in the medical reporting by the Panel QME, indicating a deficient medical record.

From the decision · page 6In this matter, the Applicant's credible testimony regarding her allegations of injury were not reflected in the medical reporting provided by the Panel QME. To this end, it is the duty of the Court to clarify the allegations through an additional medical examination. The Court has a duty to develop the record further. This Judge agrees with the Applicant in the Petition for Reconsideration, that this medical record needs to be developed further.