ADJ8761355 · May 23, 2022

The WCJ's order to develop the record is interlocutory and not a final order, so reconsideration is dismissed; removal is denied because the WCJ's order was compelled by applicant's credible testimony of further injury despite untimely evidence disclosure.

From the decision · page 3Applicant was the only witness to testify, and the WCJ took the matter under submission at the end of his testimony. (Id. at p. 9.) On March 8, 2022, the WCJ issued her F&O, finding there was a need to develop the record with regard to applicant's August 2021 fall. (F&O, at p. 1.) Specifically, the WCJ found that AME Bathgate needed to reevaluate applicant to determine whether his fall was a compensable consequence of his prior industrial injury. (Ibid.)

Applicant testified credibly to a serious injury from the August 23, 2021 fall after the last AME report.

Favours Applicant prevailed

This credible testimony compelled the WCJ to order further development of the record despite untimely evidence disclosure.

From the decision · page 5Here, we think defendant misstates the issue by focusing on whether the WCJ erred in admitting the records in question in the abstract, without reference to the specific situation before her. Applicant testified credibly to a serious injury sustained subsequent to the most recent AME report. Any decision rendered based on such a report would by definition not be supported by substantial evidence because it would not be based upon an adequate examination and history.

Applicant's attorney failed to timely list and serve post-fall treatment records before the Mandatory Settlement Conference and trial.

Favours Defendant prevailed

Defendant argued this failure made the evidence inadmissible and challenged the WCJ's order to develop the record.

From the decision · page 4Considering the Petition as a Petition for Removal, defendant's primary argument appears to be that the WCJ admitted and relied upon medical evidence that applicant's attorney failed to timely list and serve ahead of the trial date in order to establish the need to develop the record. Section 5502, subdivision (d)(3) provides that if the dispute over a claim is not resolved at the MSC, "the parties shall file a pretrial conference statement... listing the exhibits and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." The WCAB's authority to order development of the record cannot be used simply to bail out an employee who has failed to properly build his case. (San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986].)

AME Bathgate needed to reevaluate applicant to determine whether the August 2021 fall was a compensable consequence of prior industrial injury.

WCJ found need for AME Bathgate reevaluation to develop record on compensability of fall.

From the decision · page 3Applicant was the only witness to testify, and the WCJ took the matter under submission at the end of his testimony. (Id. at p. 9.) On March 8, 2022, the WCJ issued her F&O, finding there was a need to develop the record with regard to applicant's August 2021 fall. (F&O, at p. 1.) Specifically, the WCJ found that AME Bathgate needed to reevaluate applicant to determine whether his fall was a compensable consequence of his prior industrial injury. (Ibid.)

Provided medical reports documenting fractures and injuries from applicant's August 2021 fall.

Medical records from Dr. Bergeson were admitted to support development of the record on the fall injury.

From the decision · page 3Applicant testified that he saw Dr. Jeffrey Bergeson on August 30, 2021. (Id. at p. 5.) Applicant was told it was a very difficult fracture and that he should see an orthopedic trauma surgeon. (Ibid.) Applicant used a wheelchair for two or three months before seeing Dr. Paul Gregory, who said he needed surgery on the ankle. (Ibid.) Post-surgery, applicant is using a walker, but he cannot put his whole weight on his leg yet. (Ibid.) Most of his daily activities have been impacted by the fall because of his inability to stand on that leg. (Ibid.) He also sustained four new fractures in his back from the fall and a broken rib, which is documented in the report and CT scan from Drs. Bergeson and Gregory. (Ibid.)3

Provided medical reports documenting fractures and injuries from applicant's August 2021 fall and surgery recommendations.

Medical records from Dr. Gregory were admitted to support development of the record on the fall injury.

From the decision · page 3Applicant testified that he saw Dr. Jeffrey Bergeson on August 30, 2021. (Id. at p. 5.) Applicant was told it was a very difficult fracture and that he should see an orthopedic trauma surgeon. (Ibid.) Applicant used a wheelchair for two or three months before seeing Dr. Paul Gregory, who said he needed surgery on the ankle. (Ibid.) Post-surgery, applicant is using a walker, but he cannot put his whole weight on his leg yet. (Ibid.) Most of his daily activities have been impacted by the fall because of his inability to stand on that leg. (Ibid.) He also sustained four new fractures in his back from the fall and a broken rib, which is documented in the report and CT scan from Drs. Bergeson and Gregory. (Ibid.)3

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final orders.

The WCJ's order to develop the record is interlocutory and not a final order, so reconsideration is dismissed.

From the decision · page 3A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate.

Removal is denied because the WCJ's order was compelled by applicant's credible testimony of further injury despite untimely evidence disclosure.

From the decision · page 4Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Medical opinions must be based on reasonable medical probability, pertinent facts, adequate examination and history, and supported by reasoning to constitute substantial evidence.

The WCJ must base decisions on substantial medical evidence; credible testimony of further injury compels record development.

From the decision · page 5Nevertheless, it is well established that decisions by the Appeals Board 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].) To be 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 (Appeals Board en banc).)

Applicant's credible testimony of serious injury from August 23, 2021 fall

From the decision · page 5Here, we think defendant misstates the issue by focusing on whether the WCJ erred in admitting the records in question in the abstract, without reference to the specific situation before her. Applicant testified credibly to a serious injury sustained subsequent to the most recent AME report. Any decision rendered based on such a report would by definition not be supported by substantial evidence because it would not be based upon an adequate examination and history.