ADJ8763377 · April 13, 2022

The WCAB found that the post-MSC medical records should be admitted because the surgery occurred after the MSC, making it impossible to obtain the reports before the MSC cutoff, and any misconduct by applicant's attorney should be addressed by sanctions, not exclusion of evidence.

From the decision · page 11Finally, we turn to the admissibility of applicant's post-surgery medical reports relating to his July 2017 surgery, which occurred after the MSC. 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 found that the reciprocity provision under section 3600.5(b) did not bar applicant's claim because Florida's reciprocity statute was not in effect during applicant's employment period, and applicant had a significant nexus to California through regular employment there.

From the decision · page 1Applicant sought reconsideration1 of the July 17, 2018 Findings and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) concluded that there was no subject- matter jurisdiction over the Seattle Mariners ("Mariners"), and that applicant cannot recover against the Miami Marlins ("Marlins") based upon the reciprocity provisions of former Labor Code section 3600.5(b).2 Applicant contends that the WCJ erred in finding reciprocity under section 3600.5(b), because Florida's reciprocity statute was not in effect at the time of his employment with the Marlins, and also that the WCJ should have admitted medical records submitted after the Mandatory Settlement Conference ("MSC").3

Applicant was regularly employed in California during 1998 and 2002, establishing a significant nexus to California for jurisdiction purposes.

Favours Applicant prevailed

This fact satisfied the due process requirement for jurisdiction under Johnson and supported the applicant's claim against the Marlins.

From the decision · page 11Here, applicant testified and defendants do not contest that he was regularly employed in California during 1998 and 2002 while playing for the Ports and the River Cats, minor league affiliates of the Brewers and the Athletics respectively. (Transcript, 11/22/2017, at pp. 12; 67§ 68.) This constitutes a sufficient relationship between applicant's injuries and the State of California to satisfy the Johnson due process requirement of a significant nexus between applicant's injuries and this state.

Applicant's post-surgery medical reports were relevant and could not have been obtained before the MSC because the surgery occurred after the MSC.

Favours Applicant prevailed

This fact justified admitting the medical evidence despite the WCJ's initial refusal, impacting the medical benefits issue.

From the decision · page 12In light of the above, we do not believe the WCJ's decision to refuse to admit applicant's post-surgery QME reports can be affirmed. On remand, these reports should be admitted, along with any other development of the record that may be necessary to ensure that any resulting award is based upon substantial evidence.

Labor Code sections 5300, 5301; King v. Pan American World Airways (9th Cir. 1959) 270 F.2d 355; Federal Insurance Co. v. Workers' Comp. Appeals Bd. (Johnson) (2013) 221 Cal.App.4th 1116

The WCAB may assert jurisdiction when there is a significant connection or nexus to California, including for injuries occurring outside the state if the employee was regularly employed in California.

Applied to determine jurisdiction over injuries with nexus to California.

From the decision · page 7In general, the WCAB may assert its subject matter jurisdiction in a given workers' compensation injury claim when the evidence establishes that an employment related injury, which is the subject matter, has a significant connection or nexus to the State of California. (See § 5300, 5301; King, supra, 270 F.2d at 360; Federal Insurance Co. v. Workers' Comp. Appeals Bd. (Johnson) (2013) 221 Cal.App.4th 1116, 1128).) Whether there is a significant connection or

Labor Code sections 5502(d)(3), 5813

Medical evidence not disclosed before the MSC is inadmissible unless it could not have been discovered by due diligence prior to the MSC; misconduct by counsel should be addressed by sanctions, not exclusion of evidence.

Applied to admit post-MSC medical records and reject exclusion based on counsel's alleged misconduct.

From the decision · page 11Finally, we turn to the admissibility of applicant's post-surgery medical reports relating to his July 2017 surgery, which occurred after the MSC. 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."

Applicant testified he was regularly employed in California during 1998 and 2002 while playing for minor league affiliates of the Brewers and Athletics, establishing a significant nexus to California.

From the decision · page 11Here, applicant testified and defendants do not contest that he was regularly employed in California during 1998 and 2002 while playing for the Ports and the River Cats, minor league affiliates of the Brewers and the Athletics respectively. (Transcript, 11/22/2017, at pp. 12; 67§ 68.) This constitutes a sufficient relationship between applicant's injuries and the State of California to satisfy the Johnson due process requirement of a significant nexus between applicant's injuries and this state.

Applicant's post-surgery medical reports were relevant and should be admitted despite the WCJ's initial refusal based on discovery cutoff and alleged misrepresentations by applicant's counsel.

From the decision · page 12In light of the above, we do not believe the WCJ's decision to refuse to admit applicant's post-surgery QME reports can be affirmed. On remand, these reports should be admitted, along with any other development of the record that may be necessary to ensure that any resulting award is based upon substantial evidence.