What the panel ordered
The July 2, 2024 Findings of Fact and Order is rescinded and the matter is returned to the trial level for further proceedings.
Petition for reconsideration of the July 2, 2024 Findings of Fact and Order was granted, rescinding the prior decision and returning the matter to the trial level for further proceedings.
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 WCJ initially found no injury arising out of employment due to unpled injury date, but the Appeals Board held that the WCJ can amend pleadings to conform to proof and remanded for further proceedings.
From the decision · page 4Turning to the merits of this case, the WCJ denied Dr. Moshfegh's lien because Dr. Moshfegh's report chronicles a specific injury that occurred on March 27, 2011, a date of injury that was not claimed in this matter. "The purported 3/27/11 event has never been pled, nor is it part of the present litigation." (Report, p. 3.) The WCJ points out that the only claim at trial was an alleged specific injury of May 26, 2011. (Report, p. 1.) However, a WCJ is not limited to the issues presented on the pleadings. (Lab. Code, § 5702.) A WCJ has the authority to amend the pleadings to conform to proof. (Cal. Code Regs., tit. 8, § 10517.) In other words, having different dates of injuries in the Application for Adjudication and in Dr. Moshfegh's report is not fatal. For that reason, we grant reconsideration, rescind the July 2, 2024 Findings of Fact and Order, and return this matter to the trial level for further proceedings.
Due to confusion about injury dates and notice, the Appeals Board refrained from deciding presumed compensability and remanded for further development of the record.
From the decision · page 5Ninety days from July 27, 2011, the day Dr. Moshfegh reports applicant notified his employer of his injury, is October 5, 2011. The record contains a denial letter dated November 16, 2011 for a date of injury dated May 26, 2011, which is after the expiration of the 90-day period from July 27, 2011. (Defendant Exhibit A, Denial Letter.) Given the confusion as to the dates of injury, we refrain from making any opinions as to the issue of presumed compensability and return this matter to the trial level to develop the record on this issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant notified his supervisor of the hernia injury on the date of termination, July 27, 2011, as reported by Dr. Moshfegh.
Favours Applicant prevailed
This fact is relevant to the issue of presumed compensability under Labor Code section 5402 and affects the timing of notice to the employer.
From the decision · page 4As to the issue of whether applicant's injury is presumed compensable under Labor Code, section 5402(b), the only evidence suggesting that applicant provided the requisite notice to his employer is Dr. Moshfegh's report, which states that applicant notified his supervisor on the day of his termination of his hernia injury. (Lien Claimant's Exhibit 3, Dr. Moshfegh's report dated October 15, 2011, p. 5.) Applicant was terminated on July 27, 2011. (Report, p. 2.)
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.
Diagnosed recurrent umbilical hernia from a specific injury on March 27, 2011, and reported applicant notified supervisor of injury on termination date July 27, 2011.
The WCJ initially rejected the lien based on unpled injury date, but the Appeals Board found the WCJ can amend pleadings to conform to proof and considered the notice evidence relevant to compensability.
From the decision · page 2The matter returned to the trial calendar relating solely to the lien of Moussa Moshfegh, M.D. for treatment services provided associated with hernia evaluation/surgery. Defendant denied injury and liability for the services. (Report, p. 2.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5702; Cal. Code Regs., tit. 8, 10517
A WCJ has authority to amend pleadings to conform to proof under Labor Code section 5702 and California Code of Regulations, title 8, section 10517.
The Appeals Board held that differing injury dates in pleadings and medical reports are not fatal and remanded for further proceedings.
From the decision · page 4Turning to the merits of this case, the WCJ denied Dr. Moshfegh's lien because Dr. Moshfegh's report chronicles a specific injury that occurred on March 27, 2011, a date of injury that was not claimed in this matter. "The purported 3/27/11 event has never been pled, nor is it part of the present litigation." (Report, p. 3.) The WCJ points out that the only claim at trial was an alleged specific injury of May 26, 2011. (Report, p. 1.) However, a WCJ is not limited to the issues presented on the pleadings. (Lab. Code, § 5702.) A WCJ has the authority to amend the pleadings to conform to proof. (Cal. Code Regs., tit. 8, § 10517.) In other words, having different dates of injuries in the Application for Adjudication and in Dr. Moshfegh's report is not fatal. For that reason, we grant reconsideration, rescind the July 2, 2024 Findings of Fact and Order, and return this matter to the trial level for further proceedings.
Labor Code section 5402
Presumed compensability applies if liability is not rejected within 90 days after claim form filing under Labor Code section 5402.
The Appeals Board refrained from deciding presumed compensability due to date confusion and remanded for further record development.
From the decision · page 5Ninety days from July 27, 2011, the day Dr. Moshfegh reports applicant notified his employer of his injury, is October 5, 2011. The record contains a denial letter dated November 16, 2011 for a date of injury dated May 26, 2011, which is after the expiration of the 90-day period from July 27, 2011. (Defendant Exhibit A, Denial Letter.) Given the confusion as to the dates of injury, we refrain from making any opinions as to the issue of presumed compensability and return this matter to the trial level to develop the record on this issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's notification to supervisor of injury on termination date as reported by Dr. Moshfegh.
From the decision · page 4As to the issue of whether applicant's injury is presumed compensable under Labor Code, section 5402(b), the only evidence suggesting that applicant provided the requisite notice to his employer is Dr. Moshfegh's report, which states that applicant notified his supervisor on the day of his termination of his hernia injury. (Lien Claimant's Exhibit 3, Dr. Moshfegh's report dated October 15, 2011, p. 5.) Applicant was terminated on July 27, 2011. (Report, p. 2.)
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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