ADJ334261 · March 1, 2024

The record was previously found inadequate to determine whether applicant had a pre-existing labor-disabling permanent disability; no further evidence was procured despite the order to develop the record, and the WCJ's decision lacked adequate explanation. The Appeals Board rescinded the decision and remanded for further development of the record.

From the decision · page 2Preliminarily, we note that the issue of applicant's entitlement to SIBTF benefits was initially set for trial on June 15, 2016. The parties were given until July 15, 2016 to submit points and authorities regarding the issue of SIBTF liability, whereupon the matter would be submitted. Points and authorities were timely submitted by applicant and by SIBTF. However, on August 10, 2016, the WCJ issued an Order Vacating Submission and Ordering Further Discovery. "Specifically," wrote the WCJ in his Order, "the parties are to elicit an opinion from the AME, Dr. Plesons, whether Applicant had a preexisting labor disabling permanent disability, prior to the industrial injury." At an August 17, 2016 hearing, it was noted that "SIBTF will write letter to doctor." Nevertheless, despite the fact that the WCJ found that further development of the record was necessary, the fact that defendant was designated to contact Dr. Plesons, and the fact that applicant carries the burden of proof on the issue {Brown v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 903, 915 [36 Cal.Comp.Cases 627]), no further evidence was procured or admitted into the evidentiary record.

No further evidence was procured or admitted into the evidentiary record after the order to develop the record regarding pre-existing labor-disabling permanent disability.

Favours neutral

The absence of new evidence meant the record remained inadequate to determine SIBTF entitlement, requiring remand.

From the decision · page 2Preliminarily, we note that the issue of applicant's entitlement to SIBTF benefits was initially set for trial on June 15, 2016. The parties were given until July 15, 2016 to submit points and authorities regarding the issue of SIBTF liability, whereupon the matter would be submitted. Points and authorities were timely submitted by applicant and by SIBTF. However, on August 10, 2016, the WCJ issued an Order Vacating Submission and Ordering Further Discovery. "Specifically," wrote the WCJ in his Order, "the parties are to elicit an opinion from the AME, Dr. Plesons, whether Applicant had a preexisting labor disabling permanent disability, prior to the industrial injury." At an August 17, 2016 hearing, it was noted that "SIBTF will write letter to doctor." Nevertheless, despite the fact that the WCJ found that further development of the record was necessary, the fact that defendant was designated to contact Dr. Plesons, and the fact that applicant carries the burden of proof on the issue {Brown v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 903, 915 [36 Cal.Comp.Cases 627]), no further evidence was procured or admitted into the evidentiary record.

The prior reporting doctor (Dr. Plesons) was no longer available to develop the record.

Favours neutral

Applicant could not supplement the record as previously ordered, contributing to the need for remand.

From the decision · page 3Applicant explains that the prior reporting doctor is no longer available to develop the record. (Petition for Reconsideration, February 11, 2023, p. 4, lines 21-23.)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; McDuffie v. Los Angeles County Metropolitan Transit Authority (2003) 67 Cal.Comp.Cases 138 (en banc); Lab. Code §§ 5313, 5903, 5952(d)

The WCJ and Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue; a decision must be based on admitted evidence in the record and supported by substantial evidence.

The Appeals Board found the record insufficient to determine SIBTF entitlement and remanded for further development, citing the duty to ensure substantial justice and require substantial evidence.

From the decision · page 3The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2003) 67 Cal.Comp.Cases 138 (Appeals Board en banc).)