ADJ2574910 · September 5, 2025

The current record does not constitute substantial medical evidence to support a finding of new and further disability; the issue is deferred until further development and determination of disability extent.

From the decision · page 5Here, the WCJ issued a finding that applicant sustained new and further disability, but the WCJ deferred any determination of the extent of such disability. This is a contradiction. In order to support a finding of new and further disability, there must necessarily exist a finding establishing such disability. For the reasons discussed in the WCJ's Report, we agree that the current record does not constitute substantial medical evidence. Thus, we cannot determine whether applicant has sustained new and further disability absent a determination of any additional periods of temporary disability, or a final rating of permanent disability. Accordingly, we will amend the F&A to defer any finding of new and further disability, until it can be determined what disability exists.

Applicant did not meet burden of proof to establish unreasonable delay by defendant; issue of penalties deferred for further development.

From the decision · page 8However, and notwithstanding the above observations, the burden of proof to establish penalties is on applicant. (§ 5705.) Given the dearth of information in the current record, we are not convinced that applicant established that defendant unreasonably delayed provision of the authorized treatment. If applicant only wished Dr. Xu to provide the hearing aids, and if the delay was caused by Dr. Xu's office, defendant would not be liable for penalties. Thus, we will order the issue of penalties deferred. All parties should proceed with diligence to ensure that the ordered treatment is provided.

The petition to reopen was properly filed and not defective; defendant's delay in raising the issue and conduct bar dismissal by laches or estoppel.

From the decision · page 63. The petition to reopen was not defective. Over 22 years after it was filed, and after the parties have conducted decades of discovery on the petition to reopen, defendant argues that the petition should be summarily dismissed because it was procedurally defective when it was filed. It does not appear that defendant is raising this argument in good faith. In workers' compensation proceedings, it is well-settled law that: (1) pleadings may be informal (Zurich Ins. Co., supra, 9 Cal. 3d at p. 852; Bland, supra, 3 Cal. 3d at pp. 328§ 334; Martino v. Workers' Comp. Appeals Bd. (2002) 103 Cal. App. 4th 485, 491; Rivera v. Workers' Comp. Appeals Bd. (1987) 190 Cal. App. 3d 1452, 1456 [236 Cal. Rptr. 28, 52 Cal. Comp. Cases 141]; Liberty Mutual Ins. Co v. Workers' Comp. Appeals Bd. (Aprahamian) (1980) 109 Cal. App. 3d 148, 152§ 153 [167 Cal. Rptr. 57, 45 Cal. Comp. Cases 866]; Blanchard v. Workers' Comp. Appeals Bd. (1975) 53 Cal. App. 3d 590, 594§ 595 [126 Cal.

The QME's reporting is not substantial medical evidence and further development with the current QME is unlikely to be fruitful; appointment of a regular physician is ordered instead of replacement of the panel QME.

From the decision · page 6Applicant argues that the QME's reporting should be stricken and a new QME should be assigned. That is not proper procedure when dealing with insubstantial reporting. However, we will treat applicant's petition as requesting appointment of a regular physician given the long case history and multiple deficient reports that have issued. The current QME continues to refer to applicant's injury as a specific event, even though it is stipulated as a cumulative injury. It does not appear that further development of the record with the current QME will be fruitful. Accordingly, we will order appointment of a regular physician and return this matter to the trial judge to execute that appointment, which includes selecting the regular physician and issuing appropriate orders.

Dr. Betancourt's medical reporting is contradictory and self-limiting, not substantial medical evidence on new and further injury.

Favours Applicant prevailed

Led to deferral of new and further disability issue due to lack of substantial medical evidence.

From the decision · page 3The undersigned acknowledges contradictory findings as well as self-limiting statements in Dr. Betancourt's reporting. It is why the reporting is not to be substantial medical evidence on the issue of whether there is new and further injury.

Defendant provided no evidence of efforts to comply with the order to provide replacement hearing aids and TV attachment.

Favours Applicant prevailed

Contributed to deferral of penalty issue as applicant did not meet burden of proof for unreasonable delay.

From the decision · page 74. The issue of penalties is deferred. Section 5814 allows an award of penalties where payment of compensation is unreasonably delayed. (§ 5814.) On February 13, 2023, defendant was ordered to provide applicant replacement hearing aids with a TV attachment. That order was not appealed and it is now final. Defendant argues that it was precluded from complying with this order because the treating doctor was unable to set an appointment timely. However, arguments are not evidence. Defendant's petition does not cite to any evidence establishing the fact that defendant was precluded from authorizing the ordered treatment. Next, defendant provided no evidence of its efforts to comply with the February 13, 2023 order. The only evidence in the record is an email chain between defense counsel and applicant, which does not discuss the authorization for replacement hearing aids. (Defendant's Exhibit G.) Defendant's position appears to be that applicant is not doing enough to obtain the hearing aids; however, defendant has not provided any evidence of what efforts it has made to authorize the treatment. For example, defendant could have mailed a letter to Dr. Xu specifically authorizing the acquisition of the hearing aids. No such letter is in evidence. Defendant's argument that applicant is preventing the authorization is not supported by any record.

Found no current evidence of new and further injury from original cardiovascular event; reporting contradictory and not substantial medical evidence.

Contradictory findings and self-limiting statements in reporting; not substantial medical evidence on new and further injury issue.

From the decision · page 3Applicant's Petition to Reopen asserts "consequential injury to pulmonary system and chronic fatigue." (Citation.) Dr. Betancourt identifies obstructive sleep apnea, insomnia, hypertension, bronchial asthma, hypothyroidism and benign prostatic hypertrophy in his reporting. (Citation.) His opinion is "there is no current evidence of new and further injury stemming from his original specific cardiovascular event on September 9, 1998." (Citation.)

From the decision · page 8ORDERS 1. Defendant shall authorize Dr. Ganiyu Oshodi M.D. as the primary treating

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions to constitute substantial evidence.

Applied to reject Dr. Betancourt's report as insubstantial medical evidence on new and further disability issue.

From the decision · page 5To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "When the foundation of an expert's testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions." (People v. Bassett (1968) 69 Cal.2d 122, 139.)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

The WCJ must state reasons or grounds for determination to enable parties and Board to ascertain basis for decision; decision must be based on admitted evidence and supported by substantial evidence.

Applied to require clear designation of evidence basis and substantial evidence support for findings on new and further disability.

From the decision · page 4DISCUSSION 1. New and further disability. Section 5313 requires a WCJ to state the "reasons or grounds upon which the determination was made." The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.)

Labor Code section 5814

Section 5814 allows award of penalties where payment of compensation is unreasonably delayed.

Applied to defer penalty issue due to insufficient evidence of unreasonable delay by defendant.

From the decision · page 74. The issue of penalties is deferred. Section 5814 allows an award of penalties where payment of compensation is unreasonably delayed. (§ 5814.) On February 13, 2023, defendant was ordered to provide applicant replacement hearing aids with a TV attachment. That order was not appealed and it is now final. Defendant argues that it was precluded from complying with this order because the treating doctor was unable to set an appointment timely. However, arguments are not evidence. Defendant's petition does not cite to any evidence establishing the fact that defendant was precluded from authorizing the ordered treatment. Next, defendant provided no evidence of its efforts to comply with the February 13, 2023 order. The only evidence in the record is an email chain between defense counsel and applicant, which does not discuss the authorization for replacement hearing aids. (Defendant's Exhibit G.) Defendant's position appears to be that applicant is not doing enough to obtain the hearing aids; however, defendant has not provided any evidence of what efforts it has made to authorize the treatment. For example, defendant could have mailed a letter to Dr. Xu specifically authorizing the acquisition of the hearing aids. No such letter is in evidence. Defendant's argument that applicant is preventing the authorization is not supported by any record.

Contradictory and self-limiting statements in Dr. Betancourt's reporting

From the decision · page 3The undersigned acknowledges contradictory findings as well as self-limiting statements in Dr. Betancourt's reporting. It is why the reporting is not to be substantial medical evidence on the issue of whether there is new and further injury.

Lack of evidence from defendant showing efforts to comply with hearing aid order

From the decision · page 74. The issue of penalties is deferred. Section 5814 allows an award of penalties where payment of compensation is unreasonably delayed. (§ 5814.) On February 13, 2023, defendant was ordered to provide applicant replacement hearing aids with a TV attachment. That order was not appealed and it is now final. Defendant argues that it was precluded from complying with this order because the treating doctor was unable to set an appointment timely. However, arguments are not evidence. Defendant's petition does not cite to any evidence establishing the fact that defendant was precluded from authorizing the ordered treatment. Next, defendant provided no evidence of its efforts to comply with the February 13, 2023 order. The only evidence in the record is an email chain between defense counsel and applicant, which does not discuss the authorization for replacement hearing aids. (Defendant's Exhibit G.) Defendant's position appears to be that applicant is not doing enough to obtain the hearing aids; however, defendant has not provided any evidence of what efforts it has made to authorize the treatment. For example, defendant could have mailed a letter to Dr. Xu specifically authorizing the acquisition of the hearing aids. No such letter is in evidence. Defendant's argument that applicant is preventing the authorization is not supported by any record.