ADJ9940342 — California WCAB decision

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.

Earnings / average weekly earningsDefendant prevailed

Applicant was held to his stipulation on average weekly wage absent good cause to vacate it; evidence offered was insufficient to overcome the stipulation; Labor Code section 4453 mandates earnings at time of injury control calculation.

Jurisdiction / venueDefendant prevailed

Defendant's due process rights were not abrogated by closure of discovery; defendant had ample notice and opportunity to prepare; closure was proper balancing of interests.

From the decision · page 13"reasonably calculated...to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Fortich, supra, 233 Cal.App.3d 1449.) Consequently, we discern no violation of defendant's due process rights arising out of the closure of discovery and adjudication in this matter. In addition, we conclude that the evidentiary record supports the WCJ's determination that applicant is permanently and totally disabled.

Medical treatment / UR / IMRApplicant prevailedback · legs · hips · feet · bladder · bowels · psyche · sexual function · sleep · head · neurological and sensory deficits

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 4453

Earnings at time of injury control calculation of temporary and permanent disability benefits

Applied to reject applicant's attempt to vacate wage stipulation

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

AME opinions entitled to substantial weight absent showing of error

Applied to uphold AME report as substantial evidence

From the decision · page 8David Chittenden has been a respected forensic evaluator in workers' compensation cases in the Bay Area for decades. Moreover, the opinions of an AME are entitled to substantial weight absent a showing that they are based on an incorrect factual history or legal theory, or are otherwise unpersuasive in light of the entire record. (See, e.g., Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]; Siqueiros v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 150 (writ denied).) Seeing no flaws in Dr. Chittenden's assessment of this matter, including those alleged by defendant, I have accepted that assessment.

Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal. App. 4th 1370

Due process requires balancing interests and flexible procedural protections

Applied to reject due process challenge to discovery closure

From the decision · page 10"The due process safeguards required for protection of an individual's statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedures is a substantive element of one's liberty. [Citation.] This approach presumes that when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision-making and in being treated with respect and dignity. Accordingly, it places front and center the issue of critical concern, i.e., what procedural protections are warranted in light of governmental and private interests." [Citations] This approach also recognizes the flexible nature of the due process requirement, which calls only for such procedural requirements as the particular situation demands. (Ibid.) "[T]he extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context." (Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal. App. 4th 1370, 1388 [81 Cal. Comp. Cases 332], citing People v. Ramirez (1979) 25 Cal.3d 260, 268 [158 Cal. Rptr. 316, 599 P.2d 622].)

ADJ9940342 · March 7, 2023

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

What proof carried it

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