ADJ7437728 · February 13, 2024

Board found WCJ's finding inconsistent with parties' stipulations and due process; deferred issue and remanded for further proceedings.

From the decision · page 9through April 15, 2010, as a retail sales/warehouse person, at 2416 East Gage Avenue, Huntington Park, California, by Plaza de Mariscos, claims to have sustained injury arising out of and occurring in the course of employment to his nervous system, psyche, brain, left leg, eyes, left shoulder, left upper arm, lower back, right wrist, neck, face, elbows, ankles, left wrist, right shoulder, internal system, and in the form of a hernia; the issue of whether the applicant sustained a cumulative injury arising out of and occurring in the course of employment, as claimed, is deferred.

WCJ found, and Board affirmed, that applicant sustained injury AOE/COE to listed body parts on January 31, 2010; no injury to eyes.

From the decision · page 1By his Petition for Reconsideration (Petition), applicant seeks reconsideration of the Findings of Fact and Award (F&A) in case number ADJ7437728, issued by the workers' compensation administrative law judge (WCJ) on October 13, 2021, wherein the WCJ found in pertinent part that on January 31, 2010, applicant sustained an injury AOE/COE, to his nervous system, psyche, chest, head, nose, neck, back, and face; that applicant did not sustain injury AOE/COE to his eyes; and that the injury caused 89% permanent disability.1

Applicant did not submit evidence supporting fraud/falsification allegations; arguments alone are not evidence.

Favours Defendant prevailed

Board found no factual support for applicant's fraud contentions, affecting credibility and outcome.

From the decision · page 5We first note that, applicant did not testify or submit any evidence in support of his numerous contentions regarding "fraud" and "falsification" of medical records. Applicant's Exhibit 1 contains various medical records that applicant contends are "False Medical Studies." According to the Merriam-Webster Thesaurus, "contention" is synonymous with "argument." Clearly, a party's arguments are not, in and of themselves, evidence. As the WCJ states in her Report:

WCJ's finding in ADJ7238534 was inconsistent with parties' stipulations and due process; parties were not given opportunity to be heard before decision contrary to stipulations.

Favours Applicant prevailed

Board rescinded F&A and remanded for further proceedings to allow due process.

From the decision · page 8Here, in case number ADJ7238534 the parties were not given the opportunity to appear prior to the decision being issued, which is inconsistent with their stipulations. It is also important to note that the issue of injury AOE/COE was not identified as an issue to be submitted for decision in either case. Raising and determining such an issue without providing prior notice to the parties, and an opportunity for them to be heard, is contrary to due process. (Gangwish v. Workers' Comp. Appeals Bd., supra; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449 [56 Cal.Comp.Cases 381].)

Gangwish v. WCAB (2001) 89 Cal.App.4th 1284; Rucker v. WCAB (2000) 82 Cal. App. 4th 151.

If a finding is to be made contrary to a stipulation, parties must be given opportunity to appear and present their positions before a decision inconsistent with stipulations is issued.

Board found parties were not given opportunity to be heard before WCJ issued decision inconsistent with stipulations; remanded for further proceedings.

From the decision · page 8Based thereon, if a finding is going to be made that is contrary to a stipulation of the parties, the parties are to be given the opportunity to appear and present their respective positions regarding the stipulations, prior to a WCJ issuing the decision that is inconsistent with the stipulations previously submitted by the parties. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal. App. 4th 151 [65 Cal.Comp.Cases 805].)

Labor Code § 5702; Cal. Code Regs., tit. 8, § 10517; Draper v. WCAB (1983) 147 Cal. App. 3d 502; Turner Gas Co. v. WCAB (1975) 47 Cal.App.3d 286; Memorex Corp. v. WCAB (Kraten) (1977 W/D) 42 Cal.Comp.Cases 458.

Stipulations between parties are not binding on the Appeals Board or WCJ, who may reject or amend them and base decisions on the evidence presented at hearing.

Board noted stipulations are not binding but due process requires parties be given opportunity to be heard before findings contrary to stipulations are made.

From the decision · page 7It is well established that while stipulations between adversary parties concerning the existence or nonexistence of material facts are permissible in workers' compensation cases, under Labor Code, section 5702, the stipulations are not binding on the Appeals Board or the WCJ and the Appeals Board or the WCJ may reject or amend a stipulation and base the decision on the evidence presented at the hearing. (Lab. Code, § 5702; Cal. Code Regs., tit. 8, § 10517; Draper v. Workers' Comp. Appeals Bd. (1983) 147 Cal. App. 3d 502 [48 Cal.Comp.Cases 748]; Turner Gas Co. v. Workmen's Comp. Appeals Bd., (1975) 47 Cal.App.3d 286 [40 Cal.Comp.Cases 253]; Memorex Corp. v. Workmen's Comp. Appeals Bd. (Kraten) (1977 W/D) 42 Cal.Comp.Cases 458.) However, pursuant to Appeals Board Rule 10835:

Applicant did not testify or submit evidence supporting fraud/falsification allegations; arguments alone are not evidence.

From the decision · page 5We first note that, applicant did not testify or submit any evidence in support of his numerous contentions regarding "fraud" and "falsification" of medical records. Applicant's Exhibit 1 contains various medical records that applicant contends are "False Medical Studies." According to the Merriam-Webster Thesaurus, "contention" is synonymous with "argument." Clearly, a party's arguments are not, in and of themselves, evidence. As the WCJ states in her Report: