What the panel ordered
The Appeals Board rescinded the January 13, 2021 Findings and Order and returned the matter to the trial level for further proceedings consistent with the decision after reconsideration.
Applicant sought reconsideration of the Findings and Order issued by the workers' compensation arbitrator on January 13, 2021, which denied applicant an examination with a QME in orthopedics or occupational medicine; the Appeals Board granted reconsideration to study the issues further.
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 that the WCA erred in denying the applicant a QME examination based on the ADR rules, as the rules do not abrogate the WCA's authority to appoint a medical examiner and due process requires a meaningful consideration of the merits.
From the decision · page 4The matter thereafter stood submitted, and on January 13, 2021, the WCA issued his Opinion and Order finding that applicant was not entitled to an examination with a QME specializing in either the field of orthopedic or occupational medicine.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not attend the scheduled QME examination with Dr. Wiggins on May 8, 2019, but this failure was due to applicant's reconsideration and belief that the appointment was cancelled by defendant.
Favours neutral
This fact was central to the WCA's denial of the QME examination but was reconsidered by the Appeals Board as not justifying denial under the ADR rules.
From the decision · page 2I. PROCEDURAL HISTORY Applicant, while employed by defendant, claims to have sustained injury arising out of and in the course of his employment (AOE/COE) on September 6, 2018 to his back, chest, neck and head. Defendant denied the industrial injury on February 8, 2019, and claimed the affirmative defense of post-termination per Labor Code1 section 3600(a)(10). Applicant was a member of the National Electrical Contractors Association (NECA) and the Local Union of the International Brotherhood of Electrical Workers (IBEW). A collective bargaining agreement, as authorized by section 3201.5, was in effect for those employees who sustained injuries during their employment with an employer in California. Pursuant to the Rules of the NECA/IBEW Workers' Compensation Trust Alternative Disputes Resolution Program (the ADR Program), after applicant claimed injury, he was provided with an occupational medicine QME panel which included Peter Yip, M.D., David Suchard, M.D., and Patricia Wiggins, M.D. Applicant scheduled an examination with Dr.
The ADR rules Section 48 Article 13 do not set forth forfeiture of the right to a QME examination for failure to attend an appointment, and the WCA's reliance on this rule to deny the examination was erroneous.
Favours Applicant prevailed
This legal interpretation led the Appeals Board to rescind the WCA's order and return the matter for further proceedings.
From the decision · page 5Petitioner is correct that the aforementioned section relied upon by the WCA in denying
Due process requires the Appeals Board to provide a meaningful consideration of the merits and protect the rights of persons seeking reconsideration, which supports allowing the applicant a QME examination to rebut the carrier's denial.
Favours Applicant prevailed
This constitutional requirement influenced the Appeals Board's decision to rescind and remand for further proceedings.
From the decision · page 8The Appeals Board's constitutional requirement to accomplish substantial justice means that the Appeals Board must protect the due process rights of every person seeking reconsideration. (See San Bernardino Cmty. Hosp. v. WorkersComp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] ["essence of due process is... notice and the opportunity to be heard"]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) In fact, "a denial of due process renders the appeals board's decision unreasonable..." and therefore vulnerable to a writ of review. (Von Ritzhoff, supra, 233 Cal.App.4th at p. 985 citing Lab. Code, § 5952(a), (c).) Thus, due process requires a meaningful consideration of the merits of every case de novo with a well- reasoned decision based on the evidentiary record and the relevant law.
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.
Panel member of the occupational medicine QME panel provided to applicant; applicant scheduled an exam with Dr. Wiggins but did not attend.
From the decision · page 2I. PROCEDURAL HISTORY Applicant, while employed by defendant, claims to have sustained injury arising out of and in the course of his employment (AOE/COE) on September 6, 2018 to his back, chest, neck and head. Defendant denied the industrial injury on February 8, 2019, and claimed the affirmative defense of post-termination per Labor Code1 section 3600(a)(10). Applicant was a member of the National Electrical Contractors Association (NECA) and the Local Union of the International Brotherhood of Electrical Workers (IBEW). A collective bargaining agreement, as authorized by section 3201.5, was in effect for those employees who sustained injuries during their employment with an employer in California. Pursuant to the Rules of the NECA/IBEW Workers' Compensation Trust Alternative Disputes Resolution Program (the ADR Program), after applicant claimed injury, he was provided with an occupational medicine QME panel which included Peter Yip, M.D., David Suchard, M.D., and Patricia Wiggins, M.D. Applicant scheduled an examination with Dr.
Panel member of the occupational medicine QME panel; applicant reconsidered and decided to schedule with Dr. Suchard instead of Dr. Wiggins but did not attend any exam.
From the decision · page 2I. PROCEDURAL HISTORY Applicant, while employed by defendant, claims to have sustained injury arising out of and in the course of his employment (AOE/COE) on September 6, 2018 to his back, chest, neck and head. Defendant denied the industrial injury on February 8, 2019, and claimed the affirmative defense of post-termination per Labor Code1 section 3600(a)(10). Applicant was a member of the National Electrical Contractors Association (NECA) and the Local Union of the International Brotherhood of Electrical Workers (IBEW). A collective bargaining agreement, as authorized by section 3201.5, was in effect for those employees who sustained injuries during their employment with an employer in California. Pursuant to the Rules of the NECA/IBEW Workers' Compensation Trust Alternative Disputes Resolution Program (the ADR Program), after applicant claimed injury, he was provided with an occupational medicine QME panel which included Peter Yip, M.D., David Suchard, M.D., and Patricia Wiggins, M.D. Applicant scheduled an examination with Dr.
Selected by applicant for QME exam scheduled on May 8, 2019, but applicant did not attend the exam.
From the decision · page 2I. PROCEDURAL HISTORY Applicant, while employed by defendant, claims to have sustained injury arising out of and in the course of his employment (AOE/COE) on September 6, 2018 to his back, chest, neck and head. Defendant denied the industrial injury on February 8, 2019, and claimed the affirmative defense of post-termination per Labor Code1 section 3600(a)(10). Applicant was a member of the National Electrical Contractors Association (NECA) and the Local Union of the International Brotherhood of Electrical Workers (IBEW). A collective bargaining agreement, as authorized by section 3201.5, was in effect for those employees who sustained injuries during their employment with an employer in California. Pursuant to the Rules of the NECA/IBEW Workers' Compensation Trust Alternative Disputes Resolution Program (the ADR Program), after applicant claimed injury, he was provided with an occupational medicine QME panel which included Peter Yip, M.D., David Suchard, M.D., and Patricia Wiggins, M.D. Applicant scheduled an examination with Dr.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
San Bernardino Cmty. Hosp. v. WorkersComp. Appeals Bd. (1999) 74 Cal.App.4th 928
Due process requires a meaningful consideration of the merits of every case de novo with a well-reasoned decision based on the evidentiary record and the relevant law.
The Appeals Board must protect due process rights and provide a well-reasoned decision based on evidence and law.
From the decision · page 8The Appeals Board's constitutional requirement to accomplish substantial justice means that the Appeals Board must protect the due process rights of every person seeking reconsideration. (See San Bernardino Cmty. Hosp. v. WorkersComp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] ["essence of due process is... notice and the opportunity to be heard"]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) In fact, "a denial of due process renders the appeals board's decision unreasonable..." and therefore vulnerable to a writ of review. (Von Ritzhoff, supra, 233 Cal.App.4th at p. 985 citing Lab. Code, § 5952(a), (c).) Thus, due process requires a meaningful consideration of the merits of every case de novo with a well- reasoned decision based on the evidentiary record and the relevant law.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
An arbitrator's decision must be based on admitted evidence and supported by substantial evidence.
The WCA's decision must be supported by substantial evidence.
From the decision · page 7As with a workers' compensation administrative law judge (WCJ), an arbitrator's decision must be based on admitted evidence and must be supported by substantial evidence. (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's failure to attend the scheduled QME exam with Dr. Wiggins on May 8, 2019
Claims adjuster testimony that no QME exam was cancelled by defendant and no exam was set with Dr. Suchard
From the decision · page 4Claims adjuster Amanda Nashert testified that she did not cancel the examination with Dr. Wiggins, and further that she never set an examination with another QME, Dr. Suchard, as was alleged by applicant. (Transcript, p. 24.) She acknowledged under cross-examination that in May 2020 she had objected to applicant undergoing a QME with an orthopedist, because she had the right to do so. (Transcript, pp. 28-29.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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