ADJ8878645 · April 6, 2021

The Arbitrator's summary denial lacked evidentiary and legal support, the medical report was not comprehensive, and further development of the medical record was required.

From the decision · page 1In the Findings and Order of September 26, 2019, the workers' compensation arbitrator ("Arbitrator") found that applicant filed a timely petition to reopen, that because "the medical report of Dr. Jae Hyung Chon has been received...the record is complete to issue a decision," and that "there are not sufficient grounds to support a petition to reopen for new and further disability." Pursuant to the above findings, the Arbitrator denied applicant's petition to reopen.

Arbitrator Silberman did not create a proper trial record or issue an Opinion on Decision

Favours Applicant prevailed

Lack of evidentiary and legal support for denial of petition to reopen

From the decision · page 2Subsequent to the Findings and Award dated December 15, 2014, applicant filed a timely petition to reopen, and proceedings were held by the current Arbitrator, Leonard J. Silberman. In the decision disputed here, Arbitrator Silberman essentially issued a summary denial of applicant's petition to reopen. Based on our review of this matter, we conclude that Arbitrator Silberman's decision lacks evidentiary and legal support. Therefore, we will rescind the Findings and Order of September 26, 2019, and we will return this matter to Arbitrator Silberman for further proceedings and new decision.

Dr. Chon's August 27, 2019 report did not address temporary disability or compare condition to prior Findings and Award

Favours Applicant prevailed

Report was not substantial evidence to deny petition to reopen

From the decision · page 3We disagree that the "right to a speedy trial" is a relevant factor in determining applicant's petition to reopen under the circumstances of this case. To the extent the Findings and Order of September 26, 2019 is based on Arbitrator Silberman's perceived need to expedite the proceedings, the decision is not supported by evidence and must be rescinded. In addition, it appears that Arbitrator Silberman's description of Dr. Chon's August 27, 2019 report is inaccurate. Although the record is incomplete, a copy of Dr. Chon's August 27, 2019 has been made available for our review as an attachment (exhibit "D") to applicant's petition for reconsideration. Contrary to what Arbitrator Silberman has indicated, we find no statement in Dr. Chon's report that applicant's condition has not worsened. In fact, Dr. Chon found that applicant did not become permanent and stationary until August 27, 2019, suggesting a possibility that she may have been temporarily disabled before then. However, Dr. Chon did not further address the issue of temporary disability (if any). Dr. Chon also stated that applicant "cannot return to her usual line of work," but his August 27, 2019 report makes no comparisons or statements concerning any change in applicant's medical condition in reference to her condition as it existed at the time of the previous Findings

In August 27, 2019 report, found applicant did not become permanent and stationary until that date and that applicant cannot return to her usual line of work; report was not comprehensive enough to constitute substantial evidence on new and further disability.

Report did not address temporary disability or compare condition to prior Findings and Award; not substantial evidence for denial of petition to reopen.

From the decision · page 3Arbitrator Silberman did submit a Report in response to applicant's petition for reconsideration, as noted at the outset. In his Report, Arbitrator Silberman states that a medical report dated August 27, 2019 from applicant's treating physician, Dr. Chon, found that her condition had not worsened, and that Dr. Chon gave "the same factors of disability as had existed at the time Judge Goodman issued his original Findings and Award." Arbitrator Silberman further states that he "allowed the arbitration to be continued three times to allow applicant to obtain a report from Dr. Chon that her condition had worsened. Based on the report received by Dr. Chon her condition has not worsened. This Arbitrator thinks that the year and nine months since the petition to reopen has been filed is sufficient time for applicant to [obtain] medical evidence to prove her case. Just as the applicant has a right to have a speedy trial, the defense has a right to have a timely conclusion to this matter."

Medical opinion formed basis of prior Findings and Award of 16% permanent disability and need for further medical treatment.

Prior Findings and Award relied on Dr. Kim's opinion; new decision should address why parties did not return to Dr. Kim for evaluation of new and further disability claim.

From the decision · page 2We begin by noting that in the previous Findings and Award dated December 15, 2014, Arbitrator Howard Goodman found that on December 7, 2012, applicant sustained industrial injury to her low back, and in the form of headaches, causing permanent disability of 16% and the need for further medical treatment. Arbitrator Goodman based his findings on the medical opinion of Dr. Hose Kim, Panel Qualified Medical Evaluator (PQME).

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 477 [en banc]

Proper trial record requirements including issues, stipulations, and admitted evidence

Arbitrator Silberman failed to create a proper trial record as required by law

From the decision · page 2First, we observe that Arbitrator Silberman evidently did not create a record, as no record has been deposited in EAMS for our review. In Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 477 [en banc],2 the Appeals Board summarized the requirements of a proper record as follows:

Evans v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]

Requirement for detailed Opinion on Decision stating evidence and reasons

Arbitrator Silberman did not issue an Opinion on Decision explaining denial of petition to reopen

From the decision · page 3Secondly, we observe that Arbitrator Silberman did not issue an Opinion on Decision, so his denial of applicant's petition to reopen is not fully explained. The purpose of the requirement that evidence be stated and reasons be detailed "is to assist the reviewing court to ascertain the principles relied upon by the lower tribunal, to help that tribunal avoid careless or arbitrary action, and to make the right of appeal or of seeking review more meaningful." (Evans v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].)

Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290)

Further development of medical record required when evidence is incomplete or insufficient

Dr. Chon's report was not comprehensive enough to constitute substantial evidence; further development required

From the decision · page 4and Award dated December 15, 2014. We conclude that Dr. Chon's August 27, 2019 report is not comprehensive or thorough enough to constitute substantial evidence on the question of new and further disability. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Accordingly, further development of the medical record is required. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290) [The Board "may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence."].)

Incomplete record and lack of proper trial record by Arbitrator Silberman

From the decision · page 2Subsequent to the Findings and Award dated December 15, 2014, applicant filed a timely petition to reopen, and proceedings were held by the current Arbitrator, Leonard J. Silberman. In the decision disputed here, Arbitrator Silberman essentially issued a summary denial of applicant's petition to reopen. Based on our review of this matter, we conclude that Arbitrator Silberman's decision lacks evidentiary and legal support. Therefore, we will rescind the Findings and Order of September 26, 2019, and we will return this matter to Arbitrator Silberman for further proceedings and new decision.

Inaccurate description of Dr. Chon's August 27, 2019 report by Arbitrator Silberman

From the decision · page 3Arbitrator Silberman did submit a Report in response to applicant's petition for reconsideration, as noted at the outset. In his Report, Arbitrator Silberman states that a medical report dated August 27, 2019 from applicant's treating physician, Dr. Chon, found that her condition had not worsened, and that Dr. Chon gave "the same factors of disability as had existed at the time Judge Goodman issued his original Findings and Award." Arbitrator Silberman further states that he "allowed the arbitration to be continued three times to allow applicant to obtain a report from Dr. Chon that her condition had worsened. Based on the report received by Dr. Chon her condition has not worsened. This Arbitrator thinks that the year and nine months since the petition to reopen has been filed is sufficient time for applicant to [obtain] medical evidence to prove her case. Just as the applicant has a right to have a speedy trial, the defense has a right to have a timely conclusion to this matter."