ADJ10586171 · December 15, 2023

The record was found insufficient to establish injury to the left eye; further development was ordered but applicant did not timely object to the specialist's report or timely file the petition for reconsideration.

From the decision · page 7Here, as set forth by the WCJ in his Report, the record regarding applicant's claimed injury to his left eye is not sufficient. Thus, as a matter of due process, further development of the record is appropriate. Applicant is admonished that he should obtain the additional evidence forthwith.

Applicant did not conduct discovery or request QME evaluation for left eye prior to trial and did not list left eye as an issue in pre-trial statement.

Favours Defendant prevailed

This failure contributed to the record being insufficient to establish injury to the left eye.

From the decision · page 4Here, applicant had not conducted discovery nor had he requested a 4060 QME evaluation to address his left eye complaints and had not listed the left eye as an issue on the pre-trial conference statement by the time of the 5/04/2022 Trial. However, because the left eye had not yet been addressed, the undersigned ordered the parties to return to QME Dr. Xeller or have him refer applicant to a specialist to address his left eye complaints. Having undergone the evaluation, and if unsatisfied with the resulting report and recommendations of the specialist, applicant had the opportunity to object to Dr. Zeiter's report prior to or after the Notice of Intention and Order issued. However, applicant did not do so and further, did not timely file his Petition for Reconsideration. Applicant has the burden to prove his injury arose out of and in the course of employment by a preponderance of the evidence and must exercise due diligence in doing so. Here, applicant did not exercise due diligence in presenting evidence with regard to his left eye prior to trial, and when given another opportunity to do so, did not object to Dr. Zeiter's report, and was late in filing his Petition for Reconsideration.

Applicant did not object to the specialist ophthalmologist's report and filed the Petition for Reconsideration late.

Favours Defendant prevailed

Applicant's failure to timely object and late filing led to dismissal of the petition and deferral of the left eye injury issue.

From the decision · page 4Here, applicant had not conducted discovery nor had he requested a 4060 QME evaluation to address his left eye complaints and had not listed the left eye as an issue on the pre-trial conference statement by the time of the 5/04/2022 Trial. However, because the left eye had not yet been addressed, the undersigned ordered the parties to return to QME Dr. Xeller or have him refer applicant to a specialist to address his left eye complaints. Having undergone the evaluation, and if unsatisfied with the resulting report and recommendations of the specialist, applicant had the opportunity to object to Dr. Zeiter's report prior to or after the Notice of Intention and Order issued. However, applicant did not do so and further, did not timely file his Petition for Reconsideration. Applicant has the burden to prove his injury arose out of and in the course of employment by a preponderance of the evidence and must exercise due diligence in doing so. Here, applicant did not exercise due diligence in presenting evidence with regard to his left eye prior to trial, and when given another opportunity to do so, did not object to Dr. Zeiter's report, and was late in filing his Petition for Reconsideration.

Evaluated applicant's left eye; found no pathology from the accident; eye exam normal; discharged with no impairment and no future medical care indicated.

Report found sufficient to address left eye injury; no objection filed by applicant; supports deferral of left eye injury issue.

From the decision · page 3On 6/16/2023, applicant was evaluated by Ophthalmologist Dr. Joseph Zeiter, M.D., who issued a First Report of Occupational Injury or Illness. (Exhibit Z) Dr. Zeiter noted applicant's complaints of "blurry vision, pain around left side of head and around left eye" but after evaluation opined there was no pathology from the accident and that the eye exam "looks normal." Dr. Zeiter discharged applicant from care with no impairment and no future medical care indicated. Applicant had ample opportunity to object to Dr. Zeiter's report, and request an ophthalmologist

Labor Code sections 5900(a), 5903; California Code of Regulations, title 8, sections 10600, 10940(a), 10615(b); Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Rymer v. Hagler (1989) 46 Cal.Comp.Cases 984; U.S. Pipe & Foundry Co. v. Industrial Acc. Com. (1962) 201 Cal.App.2d 545.

Petition for Reconsideration must be filed within 25 days of service of decision; proof of mailing insufficient; time limit is jurisdictional and untimely petitions must be dismissed.

The petition was filed more than 30 days after the WCJ's decision and was dismissed as untimely.

From the decision · page 4There are 25 days allowed within which to file a petition for reconsideration from a "final"

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284; Kaiser Co. v. Industrial Acc. Com. (1952) 109 Cal.App.2d 54; Katzin v.

Due process requires notice and meaningful opportunity to present evidence; fair hearing includes opportunity to call and cross-examine witnesses, introduce exhibits, and offer rebuttal evidence.

The Appeals Board found further development of the record appropriate to ensure due process regarding the left eye injury claim.

From the decision · page 5II. All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v.

Labor Code sections 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162.

Decisions must be supported by substantial evidence; medical opinion must be based on reasonable medical probability and adequate examination; medical reports based on speculation or inadequate history are not substantial evidence.

The WCJ and Appeals Board have a duty to develop the record when evidence is insufficient; further development was ordered for the left eye injury claim.

From the decision · page 6It 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 constitute 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, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].)

Applicant did not conduct discovery or request QME evaluation for left eye prior to trial; did not list left eye as issue in pre-trial statement; did not object to specialist report; filed petition for reconsideration late.

From the decision · page 4Here, applicant had not conducted discovery nor had he requested a 4060 QME evaluation to address his left eye complaints and had not listed the left eye as an issue on the pre-trial conference statement by the time of the 5/04/2022 Trial. However, because the left eye had not yet been addressed, the undersigned ordered the parties to return to QME Dr. Xeller or have him refer applicant to a specialist to address his left eye complaints. Having undergone the evaluation, and if unsatisfied with the resulting report and recommendations of the specialist, applicant had the opportunity to object to Dr. Zeiter's report prior to or after the Notice of Intention and Order issued. However, applicant did not do so and further, did not timely file his Petition for Reconsideration. Applicant has the burden to prove his injury arose out of and in the course of employment by a preponderance of the evidence and must exercise due diligence in doing so. Here, applicant did not exercise due diligence in presenting evidence with regard to his left eye prior to trial, and when given another opportunity to do so, did not object to Dr. Zeiter's report, and was late in filing his Petition for Reconsideration.